PD-0384-26 PERSINGER, JUSTIN MICHAEL FROM MAVERICK COUNTY - 04-24-00637-CR — DISSENTING OPINION JUDGE FINLEY [ PDF/183 KB ]

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0384-26
JUSTIN MICHAEL PERSINGER, Appellant
v.
THE STATE OF TEXAS
DISSENT TO REFUSAL OF
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
MAVERICK COUNTY
Finley, J., filed a dissenting opinion.
D I S S E N T I N G O P I N I O N
In 	Roberts v. State, the San Antonio court of appeals rejected a facial
constitutional challenge to Section 20.05(a)(1)(A) of the Penal Code. — S.W.3d —,
No. 04-24-00485-CR, 2026 WL 290378, at *4 (Tex. App.—San Antonio Feb. 4,

PERSINGER DISSENT — 2
2026, pet. ref’d). In its analysis, the court of appeals held that “[t]he scope of section
20.05(a)(1)(A) covers transport with an intent to conceal that is demonstrated through
actual concealment and where concealment is itself unlawful.” Id. at *4 (emphasis
added). But nothing in Section 20.05(a)(1)(A) requires the State to prove that the
defendant committed any act of concealment. Compare Tex. Penal Code
§ 20.05(a)(1)(A) (“(a) A person commits an offense if the person knowingly:
(1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to
transport an individual with the intent to: (A) conceal the individual from a peace
officer or special investigator[.]”). In assessing a facial constitutional challenge,
courts must consider only what the government needs to prove and what the jury
needs 	to 	find—that 	is, 	“element[s]”—when 	determining 	a 	statute’s 	facial
constitutionality. Ex parte Perry, 483 S.W.3d 884, 914 (Tex. Crim. App. 2016).
Plainly, the court of appeals in Roberts erred when it considered conduct outside of
the scope of the statute. The appellant in Roberts then petitioned this Court for
review, correctly pointing out the error in the court of appeals’ analysis. When this
Court refused review, I dissented. Roberts v. State, — S.W.3d —, No. PD-0267-26,
2026 WL 2435456, at *2 (Tex. Crim. App. Aug. 20, 2026) (Finley, J., dissenting).
I would have reversed the judgment of the court of appeals and had the court of

PERSINGER DISSENT — 3
appeals re-do its analysis of the appellant’s facial constitutional challenge, properly
considering only what is covered in Section 20.05(a)(1)(A).
Unsurprisingly, the San Antonio court of appeals has now begun relying on its
opinion in Roberts as precedent to resolve similar constitutional claims in other cases.
See, e.g., Evans v. State, No. 04-24-00331-CR, 2026 WL 1161464, at *2 (Tex. App.—
San Antonio Apr. 29, 2026); Persinger v. State, No. 04-24-00637-CR, 2026 WL
1161468, at *3 (Tex. App.—San Antonio Apr. 29, 2026); Griffin v. State, No. 04-24-
00414-CR, 2026 WL 1088385 (Tex. App.—San Antonio Apr. 22, 2026); Washington
v. State, No. 04-25-00072-CR, 2026 WL 1876200, at *2 (Tex. App.—San Antonio
June 30, 2026). We now have before us petitions for discretionary review filed by the
appellant in each of the four cases listed above. Before the San Antonio court of
appeals—or worse, other courts of appeals around Texas—continues to rely upon
erroneously decided opinions, we should grant review and reverse. Because the
Court does not, I respectfully dissent.
Filed: October 15, 2026
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