YOUNG, MARTIN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0526-25

THE STATE OF TEXAS

v.

MARTIN YOUNG, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
GUADALUPE COUNTY

PARKER, J., delivered the opinion of the Court in which
RICHARDSON, NEWELL, KEEL, and FINLEY, JJ., joined, and YEARY, J., joined
except for part II B. MCCLURE, J., concurred. SCHENCK, P.J., filed a
concurring and dissenting opinion in which WALKER, J., joined.

OPINION

In this case, the court of appeals made the foundational mistake of conflating

independent grounds for seeking relief from a judgment with independent grounds

for supporting a judgment. At the suppression hearing, the State made two
YOUNG — 2

independent arguments for admitting evidence obtained pursuant to an officer-

citizen encounter: (1) the encounter was consensual until the officer developed

reasonable suspicion to detain, and (2) the officer was acting in accordance with a

community-caretaking function until the officer developed reasonable suspicion to

detain. After the trial court rejected both arguments, the State appealed, raising

only the consensual-encounter argument. The court of appeals concluded that the

State should have raised both arguments and that, because it did not raise the

community-caretaking argument, the State failed to challenge every independent

basis for upholding the trial court’s decision. As a result of this reasoning, the

court of appeals refused to address the State’s consensual-encounter argument.

But the court of appeals was mistaken: the State’s two trial arguments were

independent bases for attacking the trial court’s suppression ruling, not

independent bases for supporting it.

The State is now complaining about that mistake, and Appellee concedes

that the court of appeals made this mistake. We reverse the court of appeals’s

decision and remand the case to that court to address the State’s point of error.

I. BACKGROUND

A. The Incident
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An anonymous 911 caller reported that a Blue Honda Odyssey minivan was

stopped at an intersection with the driver appearing to be asleep. The driver

appeared to place the vehicle in reverse and ultimately ended up in a parking lot.

An officer arrived at the parking lot and found a vehicle matching the caller’s

description. He pulled in behind the vehicle but did not turn on his flashing lights.

The officer approached, asked if Appellee if he was “all right” and if he had been

asleep, and then asked Appellee if he could step out of the vehicle and talk. After

Appellee exited the vehicle, the officer smelled alcohol and began asking questions

designed to further a DWI investigation. At some point, the officer performed a

field sobriety test on Appellee, which Appellee failed. Appellee was then arrested

for driving while intoxicated (DWI).

B. Suppression

Appellee moved to suppress all evidence obtained at the scene. At the

suppression hearing, the State argued that the officer was performing a community

caretaking function when he investigated Appellee. But the State also said that it

was not relying entirely on the community caretaking function and argued that the

encounter was actually a consensual encounter until the officer developed

reasonable suspicion to detain Appellee. Appellee argued that the encounter was a
YOUNG — 4

seizure from the beginning, without a community-caretaking function motivation,

and that the seizure, at least initially, was without reasonable suspicion.

After hearing evidence and arguments, the trial court granted the motion to

suppress. In its findings, the trial court concluded that the encounter was a seizure

the moment the officer parked his patrol car behind Appellee’s vehicle. The trial

court explicitly rejected the State’s contention that the encounter was a consensual

one. The trial court further concluded that the seizure was initially justified by the

community-caretaking function but that it soon became apparent that Appellee was

not in distress, causing the community-caretaking basis for the seizure to dissipate.

The trial court concluded that the continued questioning constituted a continuing

detention without reasonable suspicion. Consequently, the trial court found that

the evidence obtained in this encounter was obtained illegally.

C. Appeal

On appeal, the State claimed that the encounter was initially a consensual

one that became a detention only after the officer obtained reasonable suspicion to

detain for DWI. The court of appeals acknowledged this in its opinion,

summarizing the State’s argument:

On appeal, the State challenges the trial court’s findings and
conclusions arguing the initial contact up until the point where he
YOUNG — 5

smelled the odor of alcohol was a consensual encounter that did not
implicate the Fourth Amendment. It further contends, once Officer
Cavazos smelled the odor of alcohol during the consensual encounter,
he had reasonable suspicion to transform the encounter with Young
into a lawful investigative detention for driving while intoxicated.1

As summarized, this argument, if correct, contains everything necessary for the

State to prevail on appeal.

Nevertheless, the court of appeals observed that the State did not address

the trial court’s findings and conclusions regarding the cessation of the officer’s

community-caretaking function followed by an unlawful detention thereafter.2 The

court held, “Because the State does not argue the community caretaking exception

theory of law on appeal, it has forfeited the issue.”3 But instead of turning to the

State’s “consensual encounter” argument, the appellate court held, “Because the

State failed to challenge on appeal all independent grounds supporting the trial

court’s ruling, we must affirm the trial court’s order.”4 In support of this

conclusion, the court of appeals cited our decisions in McGuire and Copeland that

1
State v. Young, No. 04-24-00430-CR, 2025 WL 1703778, *5 (Tex. App.—San Antonio
June 18, 2025) (not designated for publication).
2
Id. at *6.
3
Id. *7.
4
Id.
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recite the Calloway rule for upholding a judgment based on any theory of law

applicable to the case.5 The court of appeals affirmed, without addressing the

merits of the State’s “consensual encounter” claim.6

D. Discretionary Review

In its ground for review, the State asks:

When an appellant makes multiple arguments against a trial court’s
ruling and pursues only one on appeal, can the court of appeals
properly ignore that argument, assume the trial court was right about
an abandoned argument, and affirm?

In support of this ground, the State argued that the “community caretaking”

and “consensual encounter” arguments were independent arguments for denying

suppression and that the court of appeals failed to recognize this fact:

Thus, a trial court’s suppression of evidence is erroneous if even one
exception or justification for warrantless police conduct under the
Fourth Amendment applies. Here, the court of appeals failed to
recognize that the State’s consensual-encounter argument was an
additional independent argument against suppression.7

The State further complained that the court of appeals made “a logic error” by

5
Id. at *6 (citing State v. McGuire, 689 S.W.3d 596, 602 (Tex. Crim. App. 2024); State v.
Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016)); see also McGuire, supra at 602 & n.17
(citing Calloway v. State, 743 S.W.2d 645 (Tex. Crim. App. 1988)); Copeland, supra (citing
Calloway).
6
Young, supra at *7.
7
Emphasis added.
YOUNG — 7

inappropriately reasoning “in the converse,” when it concluded “that the absence

of any of these Fourth Amendment justifications or exceptions would also

independently establish a Fourth Amendment violation.”8 Rather, the State

contended, both of its trial arguments had to be defeated for the trial court’s ruling

to be correct:

In reality, for the trial court’s ruling to be correct, two things had to be
true: (1) the interaction with Cavazos had to be more than a
consensual encounter; and (2) it couldn’t be justified by community
caretaking.

Consequently, the State concluded, the court of appeals erred because

justifications for warrantless police conduct were independent reasons to attack the

trial court’s suppression order rather than independent reasons to uphold it, so the

State was only required to advance one of its reasons:

For example, when the defense argues multiple violations of the
Fourth Amendment in the trial court and the trial court suppresses
the evidence, there are multiple reasons to uphold the trial court’s
ruling. The State (as the appellant) must refute them all or the trial
court’s ruling can be affirmed as right on any of these applicable
theories. But when the defense argues against (or the State invokes)
multiple exceptions or justifications for warrantless police conduct
and the trial court suppresses the evidence, there are not multiple
reasons to uphold the trial court’s ruling. Each preserved exception
must be defeated before the trial court’s ruling is correct. And thus,
the State (as the appellant) can drop one on appeal without penalty.

8
Emphasis in State’s petition.
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When the State loses a suppression ruling, an abandoned Fourth
Amendment justification or exception (unlike an abandoned violation)
does not provide an independent basis to uphold the trial court’s
ruling.

In its briefing on discretionary review, the State reiterates that its claims on

appeal “were not independent grounds for supporting the trial court’s ruling but

were independent grounds for refuting it” and that it needed only to raise one of

them.

In his responsive briefing, Appellee agrees that “the State is correct that the

Court of Appeals misapplied the procedural-default doctrine.” Pointedly,

Appellee concedes that the court of appeals made a “category error”: “The

[Copeland] rule applies when multiple theories might independently support a trial

court’s ruling. It does not apply when multiple theories might independently refute

a ruling.” Turning to the facts, Appellee explains what he sees as the flaw in the

court of appeals’s reasoning:

Consensual encounter and community caretaking do not
independently support suppression; instead, they might
independently defeat it. The Court of Appeals treated them as if they
were alternative grounds for the trial court’s ruling, but they are
alternative grounds for the State’s challenge to that ruling. The
State’s failure to argue community caretaking does not leave an
unchallenged basis for suppression; it leaves an unchallenged
alternative basis for reversal. That is choosing which argument to make,
YOUNG — 9

not forfeiture.9

Appellee nevertheless suggests that this Court can choose to address the

merits of the suppression ruling instead of remanding that issue to the court of

appeals. He characterizes this as a choice of remedy. The State responds that the

court of appeals has not made a decision on the merits and that it is the proper

court to do so in the first instance.

II. ANALYSIS

A. Preservation

Because the State did not raise the “community caretaking” argument on

appeal, the court of appeals had no obligation to address it.10 But that does not

mean that the appellate court could decline to address the “consensual encounter”

argument that the State did raise. The two arguments were independent reasons to

deny the motion to suppress. Concisely stated, these two independent reasons

were:

9
Emphasis in Appellee’s brief.
10
See Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (“[A]ppellate courts
may review unassigned error—a claim that was preserved in the trial court but was not raised by
either party on appeal.”) (brackets and emphasis added); Urias v. State, 155 S.W.3d 141, 144
(Tex. Crim. App. 2005) (Keller, P.J., dissenting) (“While an appellate court may in its discretion
address ‘unassigned’ error, it is rarely required to do so.”) (emphasis in original); cf. State v.
Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (Like any appealing party, the State must
preserve the legal theory upon which it wishes to obtain appellate relief.).
YOUNG — 10

1. The officer had a community-caretaking reason to initiate the
encounter with Appellee, and reasonable suspicion to detain for DWI
arose before the community-caretaking reason dissipated.

2. The encounter was a consensual one until reasonable suspicion
arose to detain for DWI.

As stated, each reason, by itself, contains everything needed for the State to prevail

on appeal. Had the State raised both of these arguments on appeal, the court of

appeals would have been required to address both to properly dispose of the

appeal.11 But the State was not obligated to raise both. It could decide to save itself

and the court of appeals the trouble by raising what it perceived to be its stronger

argument. And that is what it did. The court of appeals should have addressed the

claim.

The Calloway rule that the court of appeals indirectly relied upon does not

hold to the contrary. The point of that rule is that the trial court’s “ruling” is

11
See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that
. . . addresses every issue raised and necessary to final disposition of the appeal.”); State v.
Bernard, 512 S.W.3d 351, 352 (Tex. Crim. App. 2017) (“In its first point of error, the State
presented two arguments in support of the traffic stop: (1) there was reasonable suspicion that
appellee violated Transportation Code Section 545.060(a); and (2) there was reasonable
suspicion that appellee was driving while intoxicated. The court of appeals addressed only the
first of these arguments and held that the traffic stop was not supported by reasonable suspicion
and that appellee had violated Section 545.060(a) of the Transportation Code. . . . The State has
now filed a petition for discretionary review claiming in part that the court of appeals erred in
failing to address the State’s alternative argument that the stop was justified by reasonable
suspicion that appellee was driving while intoxicated. We agree. If the stop was supported by
reasonable suspicion that appellee was driving while intoxicated, as the State contends, the
disposition of the case may change.”).
YOUNG — 11

upheld if it is “correct on any theory of law applicable to the case and reasonably

supported by the evidence.”12 But if one of the State’s independent theories for

denying relief is correct, then the trial court’s suppression ruling is not correct.

The Calloway rule typically applies when there are independent reasons to uphold

the trial court’s ruling and the appealing party fails to attack one of those reasons.

But, in the present case, the “community caretaking” and “consensual

encounter” reasons were independent reasons to overturn the trial court’s ruling.

Calloway does not bar a party from choosing to pursue only one of its independent

attacks on a ruling.

That a party could have independent reasons for attacking a judgment is a

proposition so obvious that it needs no citation. Every appellate attorney knows

this. All one has to do is look at the vast number of appeals that raise more than

one point of error. There are occasions when multiple claims have to be won in

order to obtain relief, or when each claim supports a different type of relief. But

there are an overwhelming number of instances when multiple claims are

independent bases for the exact same relief requested. And while State’s appeals

are rarer, the State too can have independent claims attacking a trial court’s

12
McGuire, 689 S.W.3d at 602 (emphasis added).
YOUNG — 12

suppression order.13

And multiple theories of relief can involve the same item of evidence. A

defendant could object at trial that an out-of-court statement violates the rule

against hearsay and also violates the Confrontation Clause of the Sixth

Amendment.14 No one would say to an appealing defendant who made those

objections that he forfeits both of them by choosing to raise only the confrontation

complaint on appeal. Or a defendant could claim that a custodial statement taken

from him was inadmissible because he was illegally arrested and also because

Miranda15 warnings were not given.16 Likewise, no one would say to an appealing

defendant who made those objections that he cannot raise his Miranda claim unless

he also raises the illegal-arrest claim. If the State responded to such an appealing

defendant by arguing that there was no arrest, that could negate both an illegal-

arrest claim and a Miranda claim, but so long as the appealing defendant’s Miranda

claim was complete, including an argument that he was in custody, he would not

13
See supra at n.11 (citing Bernard).
14
See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (Hearsay and
confrontation objections are independent, such that an objection raising only the former does not
preserve the latter for review.).
15
Miranda v. Arizona, 384 U.S. 436 (1966).
16
Cf. Dowthitt v. State, 931 S.W.2d 244, 257-62 (Tex. Crim. App. 1996) (defendant
advancing both Miranda and illegal-arrest claims).
YOUNG — 13

have to also bring forward an illegal-arrest claim.

Of course, if the trial court granted a motion to suppress an out-of-court

statement, hearsay and confrontation violations could be independent bases for

upholding suppression. Likewise, if a trial court granted a motion to suppress a

defendant’s custodial statement, illegal-arrest and Miranda-violation rationales

could be independent bases for upholding suppression. So, when the defendant

has independent reasons to suppress evidence, those are independent bases for

relief if he loses in the trial court and independent bases for upholding the trial court if

he wins.

The same is true for the State. If the State has independent bases for

denying suppression, those independent bases are independent bases to uphold the

trial court if it rules in the State’s favor but are independent bases for overturning

the trial court if the trial court suppresses the evidence. In the hearsay context, for

example, one could imagine the State advancing both the present-sense exception

and the excited-utterance exception to support the admission of an out-of-court

statement.17 If the State obtained a conviction, those two exceptions would be

independent bases to support the admission of the hearsay evidence, and the State

17
See TEX. R. EVID. 803(1), (2).
YOUNG — 14

would only have to prevail on one of them to uphold the trial court’s ruling. If, on

the other hand, the trial court suppressed the evidence as violating the hearsay

rule, these two exceptions would be independent bases for attacking the

suppression order.18 And in an appeal from this hypothetical hearsay-suppression

order, the State could raise claims based on both hearsay exceptions, but it would

not have to, and could, for example, raise only the “excited utterance” exception.

State v. Bernard provides a real-world illustration of how the State could

have multiple independent claims in a State’s appeal. In that case, the State

presented two bases for denying suppression: (1) reasonable suspicion that the

appellee committed a transportation-code violation and (2) reasonable suspicion

that the appellee committed DWI.19 The trial court rejected both of the State’s

arguments.20 The State raised both claims on appeal.21 The court of appeals

18
The State is permitted “to appeal any adverse pre-trial ruling which suppresses
evidence, a confession, or an admission, regardless of whether the defendant alleges, or the trial
court holds, that the evidence was ‘illegally obtained.’” State v. Medrano, 67 S.W.3d 892, 894
(Tex. Crim. App. 2002).
19
Bernard, 512 S.W.3d at 351.
20
Id. (“Among its conclusions of law, the trial court concluded that: (1) Watson stopped
appellee without reasonable suspicion of driving while intoxicated; and (2) appellee was not
driving in an unsafe manner and there was no reasonable suspicion of a traffic offense under
Texas Transportation Code section 545.060(a) at the time he was stopped.”).
21
Id. at 352; see supra at n.11.
YOUNG — 15

addressed only the transportation-code argument and, rejecting it, affirmed the

trial court’s suppression order.22 This Court held that the court of appeals failed to

comply with Appellate Rule 47.1’s requirement to issue an opinion “that addresses

every issue raised and necessary to final disposition of the appeal.”23

The key to Bernard’s holding is that the State’s two arguments in that case

were independent reasons for denying suppression, so they were independent bases

for reversing the trial court. Therefore, the court of appeals could not choose to

address only one of them. If either basis were correct, the trial court’s suppression

order would need to be reversed. That conclusion also means that the State did

not have to advance both of its bases on appeal. It could have chosen to advance

only the DWI basis, and the court of appeals would have been obligated to address

it. That is precisely the scenario before us in the present case.

State v. Copeland, upon which the court of appeals relied,24 does not hold to

the contrary. In Copeland, the defendant made two arguments for suppressing the

evidence: (1) the detention was too long, and (2) the consent was invalid.25 The

22
Bernard, supra.
23
Id.; see also TEX. R. APP. P. 47.1.
24
See supra at n.5.
25
501 S.W.3d at 612.
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State challenged the “consent” claim but did not challenge the “length of

detention” claim on appeal.26 We agreed with the court of appeals that the State

forfeited the “length of detention” claim and that this claim was enough to uphold

the trial court’s judgment.27

The key to Copeland’s holding is that the appellee’s two arguments in that

case were independent reasons for granting suppression, so they were independent

bases for affirming the trial court.28 The State was therefore required to defeat both

bases in order to prevail.

In summary, had the trial court denied suppression in the present case, the

State would have had two independent arguments for upholding that ruling. But

because the trial court granted suppression, the independent bases for denying

suppression became potential independent bases for relief on appeal. The State

could have raised both claims, but it was not required to do so. Consequently, the

court of appeals erred in concluding that the State forfeited or lost the right to a

26
Id.
27
Id. at 612, 614.
28
See id. at 612 (“She filed a motion to suppress, arguing that the length of her detention
was impermissibly long and that, alternatively, the police did not have consent to search the
vehicle.”); see also id. at 615 (Keller, P.J., dissenting) (“The length-of-detention issue was argued
by appellee in the trial court as one of two alternative bases for granting the motion to
suppress.”).
YOUNG — 17

review of its “consensual encounter” claim.

B. Remand

Appellee claims that we should impose a different “remedy” than

remanding to the court of appeals to address the State’s claim of error—addressing

the merits of the State’s consensual-encounter claim ourselves. Citing judicial

economy, the concurring and dissenting opinion also claims that we should address

the merits. But as a general proposition, we review only “decisions” of the courts

of appeals.29 The court of appeals has issued no decision on the merits of the

State’s consensual-encounter claim. While there is an exception to our practice of

remanding, when judicial economy is furthered by disposition of a remaining issue

that is “clear,”30 the present case does not satisfy the clarity required. And we

should keep in mind that courts of appeals are tasked with deciding issues of error

in the first instance. The court of appeals impermissibly evaded that responsibility

with a procedural-default holding based on a foundational mistake that an appellate

court should not make.

The concurring and dissenting opinion nevertheless claims that we should

29
Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014); see also Osorio-Lopez v.
State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022).
30
Gilley, supra.
YOUNG — 18

dispose of the error issue because the appeal here is an interlocutory one that is an

“expedited” matter, the issue before us is subject to de novo review, or in any

event, the issue is a factual one subject to almost total deference. The concurring

and dissenting opinion reveals its own general disdain for discretionary review

practice, however, by saying it disagrees with that practice as a general

matter—adding only that it especially disagrees when the appeal is an interlocutory

one.

But institutionally, this Court does not operate on discretionary review as a

mere error-correction court. The Rules of Appellate Procedure recognize this in

setting out guidelines for when this Court should grant review.31 While the

guidelines are “neither controlling nor fully measuring the Court of Criminal

Appeals’ discretion,” they strongly point to the limited nature of our

discretionary-review practice by suggesting that this Court should act only when

circumstances require us as a superior court to step in, such as:

(a) whether a court of appeals’ decision conflicts with another court
of appeals’ decision on the same issue;

(b) whether a court of appeals has decided an important question of
state or federal law that has not been, but should be, settled by the
Court of Criminal Appeals;

31
See TEX. R. APP. P. 66.3.
YOUNG — 19

(c) whether a court of appeals has decided an important question of
state or federal law in a way that conflicts with the applicable decisions
of the Court of Criminal Appeals or the Supreme Court of the United
States;

(d) whether a court of appeals has declared a statute, rule, regulation,
or ordinance unconstitutional, or appears to have misconstrued a
statute, rule, regulation, or ordinance;

(e) whether the justices of a court of appeals have disagreed on a
material question of law necessary to the court’s decision; and

(f) whether a court of appeals has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such a
departure by a lower court, as to call for an exercise of the Court of
Criminal Appeals’ power of supervision.32

The court of appeals’s procedural default holding clearly satisfies reason (f). If it

doesn’t satisfy reason (d), it is only because the mistake of law the court of appeals

has made was so basic that this Court has not before had occasion to pass on it. But

the merits issue does not satisfy any of those categories because there is not a

“decision” of the court of appeals against which these reasons could be measured.

To be sure, this Court deviates from these categories on rare occasions. We

have typically reserved the right to address “threshold” issues ourselves.33 But

32
Id.
33
See State v. Barber, — S.W.3d —, No. PD-0510-25, 2026 WL 1073627, *2 n.9 (Tex.
Crim. App. April 16, 2026) (citing Ex parte Doster, 303 S.W.3d 720, 721 & n.2 (Tex. Crim. App.
2010)); Ex parte Nuncio, 662 S.W.3d 903, 913 (Tex. Crim. App. 2022) (quoting from Ford v.
State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009)).
YOUNG — 20

otherwise, we have required clarity regarding the issue’s resolution. And while we

have addressed a previously unaddressed error issue on the ground that the

resolution of the issue was clear, in each such case, at least one other extenuating

factor was present. In Gilley, the error issue was overlooked by a court of appeals

that addressed other error issues, and the appealing party expressly sought to have

us decide the issue.34 In Davison, the reasoning in the court of appeals’s harm

analysis established that there was not in fact any error.35 Neither of those

situations is present here. The State advanced only one claim of error on appeal,

and the court of appeals evaded it with an erroneous procedural-default holding.

The State has not asked us to resolve its point of error but seeks to have it resolved

by the court of appeals. And nothing about the court of appeals’s resolution of the

preservation issue in this case impacts whether the trial court erred in granting the

motion to suppress.

Relying in part on precedent from the United States Supreme Court, the

concurring and dissenting opinion claims that this Court’s usual practice is out of

34
See Gilley, 418 S.W.3d at 117-19.
35
See Davison v. State, 405 S.W.3d 682, 692 (Tex. Crim. App. 2013) (“In short, for
essentially the same reasons that the court of appeals found that any constitutional violation was
harmless (albeit under the wrong subsection of Rule 44.2), and therefore declined to reach the
merits of his due process claim, we now conclude that the appellant has failed to establish the
merits of his due process claim.”).
YOUNG — 21

step with traditional jurisprudence in Texas and in the country. The concurring

and dissenting opinion is mistaken about that. The various authorities relied upon

by the concurring and dissenting opinion speak primarily to first-level appeals, and

only add that a second-level, discretionary-review court can, in its discretion, reach

an issue not raised on second-level review or decided below.36 In fact, many of the

authorities the concurring and dissenting opinion cites address the “right ruling,

wrong reason rule”— the Calloway rule—though called differently in other

jurisdictions.37 It is quite ironic that the concurring and dissenting opinion relies

upon the Calloway rule to avoid sending this case back to a court of appeals that

avoided deciding the merits by misapplying the Calloway rule.

But the outer limits of a discretionary-review court’s power is not the same

as its usual exercise. The United States Supreme Court has famously said that it is

“a court of final review and not first view.”38 The Court has said that it has made

statements like this “often.”39 And what the Supreme Court means by this is that,

36
See e.g., Jeffery Anderson, Right for Any Reason, 44 CARDOZO L. REV. 1015, passim
(2023).
37
See id.
38
Trump v. United States, 603 U.S. 593, 617 (2024); Zivotofsky v. Clinton, 566 U.S. 189,
201 (2012); Adarand Constructors v. Mineta, 534 U.S. 103, 110-11 (2001).
39
See Rivers v. Guerrero, 605 U.S. 443, 458 (2025) (“We are a Court of review, not of first
view.”) (quoting from Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)) (brackets omitted).
YOUNG — 22

“Ordinarily, we do not decide in the first instance issues not decided below.”40

And generally, the Supreme Court declines to address issues not raised in a

petition for certiorari: “We are typically reluctant to permit parties to smuggle

additional questions into a case before us after the grant of certiorari.”41 And while

that is a “prudential” doctrine, a “prudential rule . . . is more than a precatory

admonition” and this one, at least, should be deviated from “only in the most

exceptional cases.”42 And the Court has emphasized that, “by adhering

scrupulously to the customary limitations on our discretion regardless of the

significance of the underlying issue, we promote respect . . . for the Court’s

adjudicatory process.”43 And such adherence “also ensure[s] that we are not

tempted to engage in ill-considered decisions of questions not presented in the

petition.”44 The Supreme Court has applied this doctrine of discretionary-review

40
Zivotofsky, 566 U.S. at 201.
41
Norfolk Southern Ry. v. Sorrell, 549 U.S. 158, 164 (2007); see also Izumi Seimitsu Kogyo
Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 31-34 (1993).
42
Izumi Seimitsu Kogyo Kabushiki Kaisha, supra at 32.
43
Adarand Constructors, 534 U.S. at 110.
44
Id. at 110-11 (bracketed material added, internal quotation marks omitted) (quoting
Izumi Seimitsu Kogyo Kabushiki Kaisha, 510 U.S. at 34).
YOUNG — 23

restraint across the board—even to interlocutory appeals in civil cases,45 to

criminal cases within the federal system,46 and even—as in the present case—to

interlocutory appeals in criminal cases—articulating this principle in that last

situation two years ago in Trump v. United States.47

And in fact, the Supreme Court has said that the need to adhere to the “final

review, not first view” principle is especially important when the discretionary

review court overturns a threshold ruling by a lower appellate court that prevented

the latter court from reaching the merits of a claim: “In particular, when we

reverse on a threshold question, we typically remand for resolution of any claims

the lower courts’ error prevented them from addressing.”48 And the Supreme

Court found that to be true even in the interlocutory-appeal context, saying that,

while the confidence of those who want an exhaustive review of the case is

“inspiring, the Court adheres to time-tested practices instead—deciding what is

required to dispose of this case and remanding after reversing on a threshold

45
Cutter, 544 U.S. at 718 n.7.
46
Thompson v. United States, 604 U.S. 408, 417-18 (2025).
47
Trump, 603 U.S. at 617 (“Although we identify several considerations pertinent to
classifying those allegations and determining whether they are subject to immunity, that analysis
ultimately is best left to the lower courts to perform in the first instance.”).
48
Zivotofsky, 566 U.S. at 201.
YOUNG — 24

question, to obtain guidance from the litigants and the court below.”49

Preservation-of-error is a threshold issue.50 Under the Supreme Court’s own

reasoning, prudence dictates that, after reversing the preservation issue that the

court of appeals used to block review of the merits, we should remand this case

back to that court to do the merits review that it impermissibly evaded.

The Supreme Court’s view meshes comfortably with this Court’s own

practice. But we are not alone in Texas: our sister court, the Texas Supreme

Court, also adheres to the “court of final review, not first view” doctrine:

We could direct supplemental briefing on any other jurisdictional
question and proceed to resolve that question ourselves in the first
instance, but as a prudential matter, the law is typically better served
when the lower courts review a legal issue before this Court does.
“Ours is a court of final review and not first view. Ordinarily, we do
not decide in the first instance issues not decided below.”51

The concurring and dissenting opinion suggests that skipping the court of

appeals is justified if the issue is one to be reviewed de novo or in other instances

when this Court is in as good a position as the court of appeals to review a matter.

This seeming limitation to certain types of issues by the concurring and dissenting

49
Trump, 603 U.S. at 641 (brackets, internal quotation marks, and citations omitted).
50
Cruz v. State, 698 S.W.3d 265, 270 (Tex. Crim. App. 2024).
51
Rattray v. City of Brownsville, 662 S.W.3d 860, 869-70 (Tex. 2023) (quoting Zivotofsky,
566 U.S. at 201) (emphasis in original).
YOUNG — 25

opinion is no limitation at all. By expanding beyond de novo review issues to any

issue that can be reviewed on a cold record, the concurring and dissenting opinion

has swept in everything an appellate court would review. But even assuming the

concurring and dissenting opinion has advocated a narrower scope of issues for

review, such as those subject to a de novo standard, there are institutional reasons

for having a court of appeals resolve the issue first. Both this Court and the parties

can benefit from a “carefully wrought decision from the court of appeals.”52

Having that first reaction to an appellant’s claims helps the parties refine their

arguments and gives this Court a greater depth of argumentation to draw from,

both from the parties and from the lower court’s opinion itself. 53

And while the concurring and dissenting opinion says that the issue has been

52
See Barber, 2026 WL 1073627, *2 n.9 (quoting from McClintock v. State, 444 S.W.3d
15, 21 (Tex. Crim. App. 2014)); State v. Arellano, 600 S.W.3d 53, 61-62 (Tex. Crim. App. 2020).
53
See also Trump, 603 U.S. at 641 (prudent to obtain “guidance from the litigants and the
court below”); Rattray, 662 S.W.3d at 869 (“better served when the lower courts review a legal
issue before this Court does”). And the implication that only de novo issues are involved in the
present case is questionable at best. While a de novo review applies to whether a particular set of
facts constitutes a consensual encounter, a court would need to give “almost total deference” to
a trial court’s findings of what the facts are. State v. Castleberry, 332 S.W.3d 460, 465-66 (Tex.
Crim. App. 2011). On appeal, the State took issue with a historical fact finding made by the trial
court: whether the officer “parked his patrol car behind [Appellee] in a way that made it
impossible to leave.” The State contended that such a finding was not supported by the record
because it was contradicted by the video. “The deference we afford the trial court on historical
facts encompasses electronic recordings, but there are times when electronic recordings establish
facts conclusively, even under the deferential lens.” State v. Coleman, — S.W.3d —, Nos.
PD-0093-25 & PD-0094-25, 2026 WL 237733, *5 (Tex. Crim. App. January 29, 2026).
YOUNG — 26

fully briefed before us, that is incorrect. Appellee has briefed the issue before us,

but the State has not. It is true that the State briefed the issue before the court of

appeals, but briefing before an intermediate appellate court is not an adequate

substitute for briefing before us. For one thing, an intermediate appellate court

considers its own prior decisions binding, but this Court is not bound by decisions

of the courts of appeals. And being before the highest court might affect a party’s

calculus on how an issue is briefed. And Appellee has had two briefing

opportunities—before the court of appeals and this Court—while the State has

only had one, as it has understandably relied upon our jurisprudence regarding the

role of this Court that the concurring and dissenting opinion disagrees with.

And it is not at all self-evident that the speedy disposition sought by the

concurring and dissenting opinion would be better served by addressing the error

issue in the first instance. Having found that the court of appeals made a basic

error in how appeals are evaluated, our remand gives it the opportunity to address

the State’s error issue with dispatch, based on the briefing already before that

court. Taking the issue upon ourselves would require us to at least offer the State

the opportunity brief the issue before us. And depending on how we view the

issue, we might be inclined to request oral argument—especially in light of the fact
YOUNG — 27

that there is not a court-of-appeals opinion to inform our analysis. And this

Court—with nine judges—is used to a deliberative process that could well take

longer than it would take for a three-judge panel at the court of appeals to issue its

decision. And once a court-of-appeals decision is issued, there is no guarantee that

a party would even seek review, and if it did, we might refuse it. But if a party

sought review and we granted it, we would at that point have a court-of-appeals

opinion to help provide insight into the issue before us.

We are a discretionary review court. It is not our practice to conduct an

“appeal de novo” and review appellate issues from scratch.54 The State preserved

and raised a single point of error before the court of appeals, and that error issue

has not been addressed by the court of appeals. It is proper for that court to do so

in the first instance.

III. DISPOSITION

We reverse the judgment of the court of appeals and remand the case to that

court to address the merits of the State’s consensual-encounter claim.

Delivered: May 14, 2026

Publish

54
Barber, 2026 WL 1073627, *2 n.9.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0526-25

THE STATE OF TEXAS

v.

MARTIN YOUNG, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
GUADALUPE COUNTY

SCHENCK, P.J., filed a concurring and dissenting opinion in which

WALKER, J., joined.

CONCURRING AND DISSENTING OPINION

I join the opinion of the Court in holding that the court of appeals erred by

concluding the State forfeited its consensual-encounter argument on appeal. But
YOUNG DISSENT–2

the Court’s decision to remand to the court of appeals, in my view, serves only to

further delay justice by unnecessarily prolonging this litigation. I would instead

address the merits in this and like cases on interlocutory appeal and thus dissent

from the majority’s contrary disposition.

I write separately to explain two main points of disagreement. First, the

majority repeats a position that has been taken regularly without apparent regard to

constitutional and statutory discrepancies with its application. Namely, that this

Court has “limited” discretionary review power and that we may “only review

ʻdecisions.’” Maj. Op. at 17–18. The majority does not explain what it understands

the “decision” to be, neither how (or why) we would ever exercise our discretionary

review authority to compel piecemeal resolution of appeals. Second, regardless of

our understanding of the operative appellate vocabulary and past precedent

compelling our apparent default stance toward remands unless the proper judgment

is “clear,” the majority does not explain how this rule should operate when

reviewing interlocutory appeals that are supposed to be “expedited.”

I. THE TEXAS CONSTITUTION AND APPLICABLE STATUTES
PERMIT—INDEED FAVOR—PROMPT PLENARY REVIEW AND
MERITS DISPOSITIONS OF “APPEALS” FROM “DECISIONS”

As the majority correctly recognizes, this Court’s current precedent defaults

toward remand of issues or arguments not reached by the court of appeals opinion,
YOUNG DISSENT–3

although that same precedent permits us to undertake review under a supposed

“exception.” Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014); Davison v.

State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013). I believe that framework is

rooted in a flawed understanding of our powers under Article V of the Texas

Constitution and our obligations under the governing rules and statutes. 1 Put

directly, our review of “decisions” is a review of the lower court’s disposition and

judgment, not of the particulars of any opinion or opinions they issue, and we

should stop indicating otherwise.

This case therefore presents an opportunity to address whether our current

framework is appropriate at all, and whether, regardless of how we choose to

describe it, we should be routinely remanding in cases involving interlocutory

appeals. As explained below, I would first hold, explicitly, that our existing

framework as laid out in opinions of the Court giving rise to such an “exception”

reflects an erroneous understanding of the Court’s judicial power under the Texas

Constitution and the settled meaning of the word “decision.” Second, I would

conclude that remand should not be the default rule when we exercise statutory

authority to review lower court “decisions” involving interlocutory orders.

1
See TEX. CODE CRIM. PROC. art. 44.45(b) (“The Court of Criminal Appeals may review
decisions of the court of appeals . . . .”); id. art. 44.01(a)(5), (e)–(f ) (authorizing interlocutory
appeal of trial court suppression ruling, stay of trial pending appeal, and requiring court of
appeals to give precedence to disposition of the appeal).
YOUNG DISSENT–4

A. Our Current Precedent Advances Either a Misreading of Our Review
Powers Under the Texas Constitution and Governing Statutes or a
Misapplication of Our Obligation to Decide Cases We Accept for
Discretionary Review

The majority opinion fairly describes our existing remand practice and

anchors it in a series of decisions applying Texas Rules of Appellate Procedure 66.3

for determining whether to undertake discretionary review of a “decision” in the

first instance. Maj. Op. at 18–19.2 The incongruity of that reliance to the actual

question of how a case is disposed seems obvious. It appears to stem from the path

our rule governing remand has taken.

Starting with Lee v. State, this Court operated under a general understanding

that our ability to review or dispose of a case was limited by our Constitution and

statutes to “decisions” of the lower courts. 791 S.W.2d 141, 142 (Tex. Crim. App.

1990). As we observed there, “[i]n our discretionary review capacity we review

ʻdecisions’ of the courts of appeals.” Id. (citing TEX. CONST. art. V, § 5; TEX.

CODE CRIM. PROC. art. 44.45). As a textual, statutory matter, there is no concern

2
As explained below, our discretionary review power was not born from the appellate
rules—it is rooted in Article V, Section 5 of the Texas Constitution. See TEX. CONST. art. V.
Accordingly, Rule 66.3 is “neither controlling nor fully measuring” this Court’s discretion to
accept review nor relevant to our obligation to decide a case once we have accepted review. TEX.
R. APP. PROC. 66.3.
YOUNG DISSENT–5

with this formulation. 3 The problem is with its failure to consider the meaning of

the word “decision.” It improperly treats the “decision” as the “opinion” below

and thus as embracing only the issues or arguments included in the latter. As a

result, if the opinion did not reach and dispose of an argument or issue there was no

“decision” to review. Through this reading, Lee would find a ripeness problem

with this Court reaching any issue or argument not reached by the opinion, despite

the ultimate disposition below. Id.; see also Stringer v. State, 241 S.W.3d 52, 59 (Tex.

Crim. App. 2007) (“[T]he State’s alternative arguments are not ripe for our

review.”).

This “opinion-as-decision” ripeness process continued, though the Court

began recognizing an “exception” to that rule—the same one observed by the

majority here—by which we may proceed where the resolution is in the “interest of

judicial economy” or where the answer to the unreached issue or argument is

“clear.” Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004); Gilley, 418

S.W.3d at 119; see also Alonzo v. State, 158 S.W.3d 515, 515–18 (Tex. Crim. App.

2005) (Keller, J., dissenting) (urging recognition of duty of appellate court to raise

3
Article V, Section 5 of the Constitution confers on this Court “final appellate jurisdiction
coextensive with the limits of the state” and later provides “[i]n addition, the Court of Criminal
Appeals may, on its own motion, review a decision of a Court of Appeals . . . .” TEX. CONST. art.
V, § 5 (emphasis added). For reasons that will become obvious I do not believe parsing of this
text is necessary once the meaning of the word “decision” is considered.
YOUNG DISSENT–6

preservation sua sponte and after panel decision in court of appeals); but see Rhodes v.

State, 240 S.W.3d 882, 893 (Tex. Crim. App. 2007) (Price, J., dissenting) (“[W]e

do not address the merits ourselves unless the issue is brought back to us after

remand.”).

I assume from these various and sporadic recognitions of our authority to

decide things that are “clear” or in the “interest of judicial economy” despite the

failure of the court of appeals to do so first, that we have recognized (albeit silently)

that there is no constitutional or jurisdictional ripeness barrier to deciding cases

where we have exercised our discretionary review authority. As we exercise no

power to amend the Constitution or plow through any ripeness barrier it or any

statute might impose, it would be difficult to explain otherwise.4 Instead, the Court

and its members appear to operate on an assumption that our authority to decide is

generally constrained by the court of appeals’s “opinion”—or at least a

concomitant assumption that our decision to accept review is presumably subject to

the same limits.

4
This Court has continually applied this framework despite the initial constitutional and
ripeness concerns. Sotelo v. State, 913 S.W.2d 507, 509 (Tex. Crim. App. 1995); Cooper v. State,
933 S.W.2d 495, 496 (Tex. Crim. App. 1996) (per curiam); State v. Terrazas, 962 S.W.2d 38, 42
(Tex. Crim. App. 1998) (en banc) (Price, J., authoring the opinion); Stringer v. State, 241 S.W.3d
52, 59 (Tex. Crim. App. 2007); Sledge v. State, 666 S.W.3d 592, 599 (Tex. Crim. App. 2023).
YOUNG DISSENT–7

B. An Appellate “Decision” is Not Synonymous With an “Opinion”

Lee and our cases following it appear to be driven by the assumption that the

words “decision” as used in the Constitution, and the statutes creating and defining

our appellate jurisdiction and the relevant rules, target the reasons and rationales

given in the lower courts as an explanation for its disposition. This form of review

existed once under English common law in the form of the writ of error. By this

system, a party was obliged to “assign error” below and initiate a new case in a

higher court focused on the errors so “assigned.” Edson Sunderland, Improvement

of Appellate Procedure, 26 IOWA L. REV. 3, 9 (1940). By the beginning of the 1700s, a

separate appellate system governed equity proceedings by which the case was

removed to a higher court with the authority to make corrections or remand.

Thomas W. Powell, THE LAW OF APPELLATE PROCEEDINGS, IN RELATION TO

REVIEW, ERROR, APPEAL AND OTHER RELIEFS UPON FINAL JUDGMENT 43 (1872).

In this country, and in Texas in particular, we long ago adopted the appellate

review system and appellate rules that have a well-developed understanding of

“decisions” and how they are reviewed. We resolved that appellate courts review

“judgments, not opinions.” See Jennings v. Stephens, 574 U.S. 271, 277 (2015)

(citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842

(1984)); Coale & Taylor, Judgment Rendition in Texas, 75 BAYLOR L. REV. 354, 364
YOUNG DISSENT–8

(2023).

This understanding was recognized long before the ratification of our

Constitution in 1876, the enactment of any statute 5 governing our review of final

judgments or interlocutory orders, or our adoption of the rules of appellate

procedure in 1986.

If this rule were not in place, we could not affirm a judgment for any reason

other than the one offered in the opinion and urged to us by a petitioner or cross-

petition. And yet, as early as 1827, Chief Justice Marshall noted “[i]f the judgment

should be correct, although the reasoning, by which the mind of the Judge was

conducted to it, should be deemed unsound, that judgment would certainly be

affirmed in the superior Court.” Williams v. Norris, 25 U.S. 117, 120 (1827); Thigpen

v. Roberts, 468 U.S. 27, 29–30 (1984) (“Although the court below . . . addressed only

the double jeopardy issue, we may affirm on any ground that the law and the record

permit . . . .”). The “judgments, not opinions,” rule came to be acknowledged

essentially universally long ago, and certainly well before our governing statutes

were enacted. Jeffery Anderson, Right for Any Reason, 44 CARDOZO L. REV. 1015,

1027, 1033 n.109, 1039 n.150 (2023).

5
For an excellent summary of the history of the statutory appeal right see Kevin Yeary,
Appeals from Pleas of Nolo Contendere: History and Procedural Considerations, 33 ST. MARY’S L. J.
405, 407–08 (2001).
YOUNG DISSENT–9

For or over one hundred years, the United States Supreme Court has

acknowledged the longstanding principle that “ʻ[t]he court’s decision of a case is

its judgment thereon,’ while the court’s opinion is merely ʻa statement of reasons

on which the judgment rests.’” Id. (citing Rogers v. Hill, 289 U.S. 582, 587 (1933));

see McClung v. Silliman, 19 U.S. 598, 603 (1821). Likewise, Texas law predating our

current framework on the matter recognized that a “decision” is the disposition or

judgment, not the opinion:

Likewise, an opinion may be distinguished from a decision. The former
sets forth the detailed reasons and law as applied to the case upon which
the judgment is based . . . ; the latter is the judgments or legal
conclusion reached by the ruling body, Kidd v. McCracken, 105 Tex. 383,
150 S.W. 885 (1912).

Tex. Att’y Gen. Op. No. C-502 (1965). Our own appellate rules provide clear

demarcation between an opinion, decision, and judgment: Rule 77.1 provides that

this Court “will hand down a written opinion setting forth the reasons for its decision

and any germane precedent and . . . [a]ny judge may file an opinion dissenting or

concurring in the Court’s judgment.” TEX. R. APP. PROC. 77.1 (emphasis added).

Justice Calvert gave a direct admonishment to this effect more than a decade

before the adoption of the current rules of appellate procedure. “The word

ʻdecision’ as found in statutes and rules is sometimes held to mean ʻjudgment,’”

but “the ʻopinion’ of an appellate court is not at all the legal equivalent of its decisions or
YOUNG DISSENT–10

judgment.” Robert Calvert, Appellate Court Judgments or Strange Things Happen on

the way to Judgment, 6 TEXAS TECH L. REV. 915, 920–21 (1975) (emphasis added).

The current rules governing the “decision” in the court of appeals make this

plain throughout. For example, unless a case is assigned for en banc disposition at

the outset, the concurrence of two justices in the judgment determines the result.

TEX. R. APP. P. 41.1 (“Decision by Panel”). The same is true for an opinion from

the court sitting en banc. Id. R. 41.2 (“Decision by En Banc Court”) (“A majority

of the en banc court must agree on a judgment.”). Whether the justices agree on a

rationale is irrelevant. And, whatever rationales they commit to paper in the form

of the “opinion,” do not constrain the effect of the judgment going forward as

among the parties or the higher court reviewing the “decision” or “judgment.”

This is the essence of res judicata and corollary doctrines of preclusion and

procedural default and what distinguish them from collateral estoppel.

If all issues and arguments fairly within the reach of the proceedings are

resolved by the lower court’s judgment—and they plainly are—they are all fairly

within our reach (and the parties’) on direct review of the judgment regardless of

whether the court of appeals plowed through them separately and seriatim. Greene

v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not

consider issues that were not raised in the courts below, but parties are free to
YOUNG DISSENT–11

construct new arguments in support of issues properly before the Court.”); see also

Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (avoiding remand where the

record and governing law made only one judgment proper).

This Court, however, has not, in my opinion, satisfactorily explained its

understanding of the word “decision” 6 as it appears to drive our own

understanding of the exercise of jurisdiction. I believe it is time to do so and to

bring ourselves and our practices in line with the Rules of Appellate Procedure and

their stated preference for rendition wherever possible, especially where the appeal

is interlocutory and supposedly expedited. See TEX. R. APP. P. 43.3 (directing

intermediate courts to render unless remand is necessary); TEX. CODE CRIM. PROC.

art. 44.01(f ).

II. REMAND SHOULD NOT BE THE DEFAULT DISPOSITION AND
INTERLOCUTORY APPEALS SHOULD GENERALLY WARRANT
PROMPT, FINAL DISPOSITION ON THE MERITS

Regardless of our past practices, remand should not be the default rule where

we are permitted by the Constitution to answer the merits questions ourselves.

Nevertheless, it has become the practice of this Court to remand cases essentially

as a matter of course wherever the lower court’s opinion has not reached a question

6
This Court has not uniformly agreed on what constitutes a “decision,” and the need to
do so is evinced by our predecessors’ recognition of the matter. See Hughen v. State, 297 S.W.3d
330, 335–36 (Tex. Crim. App. 2009) (Price, J., dissenting) (“We have not always been able to
agree on what constitutes a ʻdecision’ of the court of appeals.”).
YOUNG DISSENT–12

that would permit its final disposition. See Gilley, 418 S.W.3d at 119; Davison, 405

S.W.3d at 691. While I disagree with this impulse as a general matter for reasons I

have already discussed, this practice should not reach to interlocutory appeals.

A. We Should Consider Our Remand Practices in All Interlocutory
Appeals

Notably, none of the cases the majority relies upon for its remand disposition

here involve an interlocutory appeal, and this Court has not carefully considered

that framework in the context of interlocutory appeals such as the one at bar. 7 Any

deliberation of remand in cases with this procedural posture should take into

consideration that the appeal will typically result in the stay of the trial pending

final resolution of the appellate process. See TEX. CODE CRIM. PROC. ANN.

44.01(e).

In cases such as this, one of two things is invariably true. Either the

defendant (as to whom there is probable cause of criminality) has been released on

bond, posing concomitant risk to the public, or (despite the presumption of

innocence) he is sitting in jail awaiting trial. While we might also continue to

7
Gilley and Davison were not interlocutory appeals. See Gilley, 418 S.W.3d at 116; Davison,
405 S.W.3d at 684–85. Precedent on our discretionary review power in this context has been
decided almost exclusively on final judgments. See Sledge v. State, 666 S.W.3d 592, 594 (Tex.
Crim. App. 2023); Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); cf. Martin v.
State, 620 S.W.3d 749, 754 (Tex. Crim. App. 2021) (declining to remand in case before us on
interlocutory appeal).
YOUNG DISSENT–13

remand these cases to the intermediate courts of appeals (who I strongly suspect to

have little interest in revisiting them), the public, and the parties suffer alike.

As a result, routinely subjecting these cases to prolonged proceedings would

be a bad habit and reflects an absence of stewardship. Our appellate rules promote

rendering judgment in all cases “promptly.” See TEX. R. APP. PROC. 43.1. 8 We

should be particularly mindful of that admonition when the pendency of the appeal

is obstructing finality.

Even if we are to hold to our existing practice of remanding unless the

lingering question is “clear” it is difficult to see how interlocutory appeals

presenting a single issue—like whether evidence is properly suppressed—will not

fit within that rubric given the standard of review.

First, acting to resolve purely legal questions that we would review de novo

presents no possible prejudice to the litigants. See Hudson United Bank v. LiTenda

Mortg. Corp., 142 F.3d 151, 159 (3d Cir. 1998); Wetherbe v. Tex. Tech Univ. Sys., 699

Fed. Appx. 297, 301 (5th Cir. 2017). Indeed, we have recognized this principle in

ourselves though we cabin it in terms of “clearness.” Gilley, 418 S.W.3d at 119.

8
The majority author opines on the prospect of delay in this Court as a rationale for
remand. Maj. Op. at 22. While I obviously have shared her concerns with our existing
operations, a majority of the Court does not support material revisions to them at present. And,
regardless of these concerns, the prospect of multiplying proceedings below, and here, does not
advance any cause of efficiency.
YOUNG DISSENT–14

Given the proliferation of “legal” as opposed to factual questions in these matters, I

believe we should presume the former are, by definition, clear enough for a

competent appellate court to answer. Norfolk Southern Ry. Co. v. Basell U.S.A., Inc.,

512 F.3d 86, 97 (3d Cir. 2008) (holding when the factual record is developed and

the issues are purely legal an appellate court can exercise plenary review).

Second, even where factual issues present themselves, our near total

deference to the trial court’s findings of historical facts leaves only the navigation of

mixed questions of fact and law to be navigated. E.g., State v. Lujan, 634 S.W.3d

862 (Tex. Crim. App. 2021). While that task may not always be “clear,” the lower

court is no more equipped than us to answer it.

And whether these questions are ultimately “clear” or not, a decision that

simply revises our default posture in this and other interlocutory appeals would

surely aid efficiency generally and preclude the continual prospect of cases like

State v. Copeland, No. 13-11-00701-CR, 2015 WL 7039545, at *3 (Tex. App.—

Corpus Christi, Feb. 24, 2016) (not designated for publication). That case

produced Copeland I, II, and III in this Court, where the final resolution of the

appeal(s) of an October 24, 2011 suppression ruling finally came into fruition

through our final opinion delivered on October 12, 2016. This should not be

possible.
YOUNG DISSENT–15

B. Remand is not Necessary in This Case

Finally, regardless of my concerns over our existing framework, applying it

here neither supports nor requires a remand. This case awaits disposition of a

motion to suppress that the trial court granted almost two years ago on June 12, 2024.

Appellee, Martin Young, was charged by information with driving while

intoxicated, a Class A misdemeanor. This case has meandered from the trial court,

through the court of appeals, then to this Court, and now, apparently, back to the

court of appeals. What’ll happen after that? Who knows—maybe Appellee or the

State will file a petition for discretionary review, and the case will come back up to

this Court.

The only remaining question here is whether the law supports the trial

court’s ruling that the seizure was unsupported by the consensual-encounter

justification advanced by the State. Our precedent on that question is

straightforward, the issue has been fully briefed before us, and the record is (and

will remain, remand or not) closed. In my view, the proper disposition is clear:

address the merits and affirm. To wit, our opinion could look like this:

Officer Andrew Cavazos responded to an anonymous 911 caller’s welfare
concern and located a vehicle of similar description. He observed Appellant
sitting in the driver’s seat and parked in a restaurant parking lot. Officer
Cavazos then parked his patrol vehicle behind Appellant’s vehicle, blocking
Appellant’s egress. He approached Appellant, wearing his uniform, badge,
and gun. Officer Cavazos asked Appellant if he was okay. When Appellant
YOUNG DISSENT–16

said yes, Officer Cazazos immediately ordered him to exit the blocked vehicle
and began a DWI investigation. Officer Cavazos testified that he did not
observe any signs of intoxication before ordering Appellant to exit his vehicle.
Viewing the totality of the circumstances, the interaction here amounted to
an investigative detention, not a consensual encounter. Thus, the trial
court’s ruling was correct. See Monjaras v. State, 664 S.W.3d 921, 926 (Tex.
Crim. App. 2022) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008)); Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App.
2016); Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.2007); State v.
Castleberry, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011).

CONCLUSION

While I concur in the Court’s forfeiture holding, I dissent to its disposition.

Filed: May 14, 2026

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