SLEDGE, DONNELL v. the State of Texas

In the Court of Criminal
Appeals of Texas
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Nos. PD-0065-22, PD-0066-22 & PD-0067-22
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DONNELL SLEDGE,
Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the Fifth Court of Appeals
Dallas County
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YEARY, J., filed a dissenting opinion.

It is almost inconceivable to me that the trial judge in this case
granted Appellant’s motions for new trial under the belief that he was
thereby declaring the evidence to be legally insufficient to support the
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three offenses for which the jury had convicted him. Even Appellant does
not seem to have believed that to be the case. And that may be why he
did not attempt to forestall the State’s re-prosecution of him through a
pre-trial application for writ of habeas corpus, or even on appeal
following his re-convictions.
It was not until the State broached the possibility of a prior
acquittal in its motion for rehearing to the court of appeals that this
double jeopardy claim even arose. In my view, the court of appeals had
discretion to refuse to entertain the merits of the claim, which was
brought by the adverse party at such a late stage of the proceedings. As
I read the court of appeals’ opinion denying rehearing, it did refuse to
address the claim on the merits. Thus, there is no double jeopardy issue
before this Court to address on discretionary review.
Under these circumstances, the Court’s opinion in this case is a
prohibited advisory opinion. See Armstrong v. State, 805 S.W.2d 791,
794 & n.4 (Tex. Crim. App. 1991) (explaining that, other than perhaps
in the case of questions about Texas criminal law certified to this Court
by a federal appellate court, the Court is “without authority to render
advisory opinions”); Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim. App.
1988) (same). Because the Court even deigns to address the issue at all,
I dissent. Moreover, because the Court also mishandles the issue, I
doubly dissent.
I. THE ISSUE IS NOT REALLY BEFORE THE COURT
The Appellant has yet to file a pleading in these cases in which
he argues that his present convictions are jeopardy barred. No pre-trial
application for writ of habeas corpus. No motion to quash the
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indictments. No claim in his brief on direct appeal raising autrefois
acquit—that the convictions resulting from his re-prosecutions violated
the constitutional protection against double jeopardy. No motion for
rehearing in the court of appeals seeking, if belatedly, to raise that issue.
While he did agree with the State that there was a double jeopardy
violation for the first time in a response to the State’s motion for
rehearing, he did not even file a petition for discretionary review
complaining of the failure of the court of appeals to address the issue.
Instead, the State raised the issue of prior acquittal for the first
time in a motion for rehearing in the court of appeals, and now on
discretionary review. The State is the appellee in this case, having
obtained the convictions it sought in the trial court. According to this
Court’s opinion in Spielbauer v. State, the State is entitled to raise new
claims—even for the first time on discretionary review—arguing why
the trial court’s judgment was correct. 622 S.W.3d 314, 318−20 (Tex.
Crim. App. 2021). But that is not what the State did in its motion for
rehearing in this case.
Instead, the State argued, for the first time in a motion for
rehearing in the court of appeals, that Appellant’s convictions were
potentially jeopardy barred. But it is not at all clear to me, at least not
in light of this Court’s decision in Rochelle v. State, that the court of
appeals was obligated to reach that claim when raised for the first time
in a motion for rehearing—by either party. 791 S.W.2d 121, 124 (Tex.
Crim. App. 1990) (“[T]he decision whether to consider [the merits of a
new ground raised for the first time in a motion for rehearing] is left to
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the sound discretion of the appellate court.”). 1 In filing its motion for
rehearing in this case, the State was acting more in the capacity of an
appellant, who is challenging the trial court’s judgment, than an
appellee, who is defending it. For that reason, I would regard Rochelle—
not Spielbauer—as the controlling authority, and I would conclude that
it was within the court of appeals’ discretion not to address the merits
of the State’s motion for rehearing. And when the court of appeals
overrules such a motion—as it did in this case—without addressing the
merits of the new claim, this Court does not typically regard it as ripe
for discretionary review. Id.; see also, e.g., Davison v. State, 405 S.W.3d
682, 691 (Tex. Crim. App. 2013) (this Court ordinarily addresses only
“decisions” of the courts of appeals).
I also do not agree with the Court that the court of appeals’
opinion denying rehearing really did address the merits of the issue. See
Majority Opinion at 12−13 (“[T]he court of appeals addressed the effect
of the [state’s] motion for new trial on both the convictions and the
enhancements.”). Nothing in the court of appeals’ opinion seems truly
responsive to the issue, other than to suggest that the appellate record
is insufficient to present it. Sledge v. State, 637 S.W.3d 967, 969 & n.3
(Tex. App.—Dallas 2022) (op. denying reh’g). 2 And as I see it, while not

1 See George E. Dix & John M. Schmolesky, 43B TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 55:109, at 217 (3d ed. 2011)
(continuing, even after Spielbauer, to observe as a general proposition that
“whether to consider a matter raised for the first time on motion for rehearing
rests in the discretion of the appellate court”).

2The court of appeals did not grant rehearing to address the State’s new
argument; instead, it issued an opinion to explain why it would not grant
rehearing to address the State’s argument. To the extent that the court of
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a model of clarity, the court of appeals’ opinion denying rehearing seems
simply to have doubled down on its holding on original submission,
reiterating its judgment ordering a new punishment hearing and
nothing more.
The court of appeals did not even meaningfully engage the State’s
argument that the basis of the trial court’s granting of the new trial
motion was a legal sufficiency determination with double jeopardy
repercussions. Instead, it simply endeavored to explain why it chose not
to grant rehearing to address the State’s arguments. Because the court
of appeals declined to address the merits of the issue, as far as I am
concerned, so should we.
II. FURTHER FACT DEVELOPMENT IS REQUIRED
The Court suggests that, in the face of an indeterminate record to
show why Appellant’s motions for new trial were granted, the trial
court’s order granting a new trial solely on the basis that the verdict was
“contrary to the law and the evidence” must control. See Majority
Opinion at 16 (refusing to entertain the suggestion that the motions for
new trial could have been granted on a different basis than legal
sufficiency “where the record is silent, or worse, absent”). According to
the Court, such an order may only be construed as a finding that the
evidence was legally insufficient—on the sole basis of its opinion in State
v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim. App. 2013). Id. at 14. And

appeals seems to have responded at all to the State’s claim in its opinion
denying rehearing, it seems simply to have rejected the State’s prayer to abate
the appeal for greater record development, relying on a “presumption of
regularity” in the appellate record as is. Sledge, 637 S.W.3d at 969 & n.3. I do
not regard this as a resolution of the merits of the new trial/acquittal issue.
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that, the Court concludes, has definite double jeopardy consequences. Id.
at 19.
A. What Does “Contrary to the Law and Evidence” Mean?
Even if I thought that it was acceptable to reach this “contrary to”
issue for the first time on discretionary review, I do not think the Court’s
conclusion is inevitable. First, I have my doubts that the import of the
phrase as it appears in Rule 21.3(h) of the Rules of Appellate Procedure
is necessarily limited to conveying a challenge to the legal sufficiency of
the evidence to sustain the judgment of conviction. See TEX. R. APP. P.
21.3(h) (“A defendant must be granted a new trial . . . for any of the
following reasons: . . . (h) when the verdict is contrary to the law and the
evidence.”). Indeed, it may not convey legal sufficiency at all.
The Rule in its current form was promulgated in 1996, and last
amended effective 2007. The phrase “contrary to the law and the
evidence,” plainly addresses both legal and evidentiary reasons for
granting a new trial. To the degree it references the possibility of a
judgment that is “contrary to . . . the law,” it embraces any legal reason
at all that might justify a new trial. And to the degree it references the
possibility of a judgment that is “contrary to . . . the evidence,” it would
seem more aptly to refer to so-called “factual” sufficiency—a doctrine
that was still in vogue during that period—than legal sufficiency. See
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)). 3 After all, the

See State v. Savage, 933 S.W.2d 497, 501 n.1 (Tex. Crim. App. 1996)
3

(Clinton, J., dissenting) (arguing that the nearly-identically worded
predecessor to Rule 21.3(h), former Rule 30(b)(9) of the 1986 Texas Rules of
Appellate Procedure, may have been intended to relate to factual sufficiency
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remedy that this Court declared to be proper when a court concluded
that evidence was factually insufficient was a new trial, Clewis, 922
S.W.2d at 136, and that understanding would make the proper remedy
consistent with the remedy actually requested in a motion for a new
trial.
A finding of legal insufficiency, in contrast, is not constitutionally
subject to the remedy of a new trial. As it presently appears in our Rules
of Appellate Procedure, then, Rule 21.3(h) may simply constitute a
useless vestige of a now-bygone era of factual sufficiency review in Texas
criminal cases, not a discordant allusion to legal insufficiency at all. And
that, it seems to me, is most likely the best way to construe its meaning.
Why, after all, would a defendant who believed he was entitled to an
outright acquittal on the ground that the evidence is legally insufficient
to sustain the verdict against him ask, instead, only for a new trial?
As yet another alternative, “contrary to the law and the evidence”
might simply constitute another catch-all phrase, like “in the interest of
justice.” This Court has said that the grounds for a new trial listed in
the Rule are not exhaustive. State v. Herndon, 215 S.W.3d 901, 907 (Tex.
Crim. App. 2007) (“The legal grounds for which a trial court must grant
a new trial are listed in Rule 21.3, but that list is illustrative, not
exclusive.”). So, a trial court may grant a motion for new trial, even “in

rather than legal sufficiency). Whether the trial court had the authority to
grant Appellant’s motion for new trial based on factual insufficiency after
Brooks—if that is what it did here, which we cannot tell because of the
incomplete record—is not properly before us today. But neither is the question
of whether the trial court in fact granted the motion based on legal
insufficiency.
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the interest of justice,” but only if the movant has also “articulated a
valid legal claim.” State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App.
2014).
In the same way, while a defendant may allege that the jury’s
verdict was “contrary to the law and the evidence”—he might also do so
in a way that focuses the trial court’s attention on a specific “law” or
“evidence” error distinct from legal sufficiency. Indeed, it is common
knowledge that appellate practitioners who seek no more than to extend
the time for filing a notice of appeal, under TEX. R. APP. P. 26.2(a)(2),
often allege that “the verdict is contrary to the law and evidence” as a
kind of non-substantive boiler-plate ground, not meant to implicate legal
sufficiency at all. Also, notwithstanding Zalman, the phrase is
frequently used, not to convey any specific complaint on its own, but
instead to simply tie a different, perhaps unenumerated basis for new
trial (or no real basis at all) to actual language from Rule 21.3.
The State Prosecuting Attorney has used the local appellate
prosecutor’s motion for rehearing in this case as an opportunity to urge
this Court to qualify Zalman in accord with this understanding, arguing
that the phrase “the verdict is contrary to the law and the evidence”
should not be construed invariably to invoke legally insufficient
evidence. State Prosecuting Attorney’s Petition for Discretionary
Review, at 7−8; State Prosecuting Attorney’s Brief on the Merits, at
13−18. I am not unsympathetic to its argument. But, for reasons
developed in Part I of this dissent, I believe this to be an inappropriate
case in which to finally resolve the question.
B. And Why Is It the State’s Burden?
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In any event, it is not clear to me—and the Court does nothing to
clarify—why it is the State in this case that must suffer the effects of an
underdeveloped record. Are we to presume that neither the parties nor
the trial court understood the double-jeopardy significance of a motion
for new trial granted because of legal insufficiency? See Hudson v.
Louisiana, 450 U.S. 40 (1981) (holding that, when the record clearly
shows that a motion for new trial was granted based on legally
insufficient evidence, and not because the trial court acted as a
proverbial “13th juror,” a retrial is barred by double jeopardy). Everyone
connected to this case proceeded to a retrial of the allegations under the
apparent assumption that it was permissible, which suggests than none
of them understood the trial court’s ruling on the motion for new trial to
have been legal-sufficiency-based. It is Appellant who now stands to
benefit from a showing that, notwithstanding the behavior of the
parties, the trial court’s ruling really was predicated on legal sufficiency.
So, should it not be he, then, who is made to suffer the consequences of
an inchoate record? That it was the State, not the Appellant, that first
called this issue to the attention of the courts should not mean that the
State should have to solidify Appellant’s claim for him.
At most, Appellant should be given the opportunity to show that
the record can be made to support the double jeopardy claim. That is
essentially the remedy the State sought in its motion for rehearing—an
abatement to further develop the record. State’s Motion for Rehearing,
at 5−6. The court of appeals denied that relief, in what I view as a
legitimate exercise of its discretion simply not to address the merits of
the issue at all on rehearing. Appellant should be required, at this
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juncture, to pursue any remedy he may still have in post-conviction
habeas corpus proceedings, 4 where he might be given the chance to
develop a more complete factual predicate for his claim. There is no
justification at this stage for making the State suffer the pitfall of a
record that fails fully to reveal the basis for the trial court’s order
granting the new trial.
The Court gives the benefit of the doubt engendered by an
underdeveloped record to Appellant. But it says nothing about why the
State must bear the burden on appeal of completing the record. Under
circumstances like these, suggesting that nobody has heretofore
believed that legal sufficiency and double jeopardy were implicated, it is
anomalous for the Court—especially in its capacity as a discretionary
review court—to reach this issue and resolve it in the first instance, with
no occasion afforded for further fact development.
III. CONCLUSION
I would dismiss the State Prosecuting Attorney’s first ground for
review as improvidently granted and proceed to address its second
ground for review. 5 Because the Court does not, I respectfully dissent.
FILED: March 8, 2023
PUBLISH

4 I have taken the position that a double jeopardy claim ought not
ordinarily to be considered cognizable in post-conviction habeas corpus
proceedings, “unless, perhaps, it could not have been raised on direct appeal
because a record was not made to substantiate the claim.” Ex parte Estrada,
487 S.W.3d 210, 215 (Tex. Crim. App. 2016) (Yeary, J. dissenting). This is
arguably such an exceptional case.

5 Because the Court’s disposition of the case moots the State’s second
ground for review, which it declares to have been improvidently granted,
Majority Opinion at 2, I will not address it today.