Breaking stride: the Texas Court of Criminal Appeals' rejection of the Lockstep approach 1988-1998.

AuthorSchneider, Jessica L.
PositionHigh Court Studies

    As state constitutional adjudication has reemerged in the last three decades,(1) it has become increasingly important for lawyers to understand and properly argue state constitutional principles. This is especially true in criminal cases. A lawyer's failure to argue under a state constitution could result in her client's imprisonment.(2) In Texas, it was not until recently that an argument under the Texas Constitution would have aided a client's defense.(3) The Court of Criminal Appeals had consistently interpreted the Texas Constitution to provide no greater protections than those afforded under the United States Supreme Court's interpretation of the Federal Constitution.(4) Over the last decade, however, the court has broken its pattern of religiously following Supreme Court opinion and has accorded the Texas Constitution much greater significance.(5) This High Court Study will provide an overview of criminal constitutional decisions rendered by the Texas Court of Criminal Appeals which reflect in detail the court's struggle with the development of independent state constitutional law. Attention has also been paid to dissenting and concurring opinions in order to, in some instances, trace the direction of the court and show how later decisions were foreshadowed and, in other instances, to illustrate the judicial ideology and philosophy of the court members.

    Since the Texas court system is different than most other states, Part II of this High Court Study will briefly discuss the development of the Court of Criminal Appeals and the system of electing its members.(6) An examination of the structure of the court will, in part, explain the inconsistency of the court's treatment of the state constitution and the futility of attempting to define the judicial philosophy of each member. Part II will also discuss the various methods available to the Court of Criminal Appeals in interpreting the Texas Constitution and how its choice of method reflected variations in its independence.

    Finally, Part III will examine the voting pattern of the Court of Criminal Appeals in addressing matters of search and seizure,(7) double jeopardy,(8) and right to counsel.(9) This High Court Study will illustrate the court's move from a strict model of "crime control" to a mixed approach of prioritizing the right of criminal defendants in some cases and the needs of law enforcement in others. Because the court appears to be in a period of transition, a generalization of the court's goal to either increase, decrease, or attain an equilibrium with the protections of the United States Constitution is impossible. Rather, the court has handed down decisions doing all three. Nevertheless, though the court has exhibited various degrees of independence in its history, during the last decade it has increasingly demanded an analysis of the Texas Constitution separate and distinct from its federal counterpart.


    The Texas Court of Criminal Appeals has nine members, one of whom is the presiding judge.(11) Judges on the court are elected to six-year terms, with three seats up for election every two years.(12) However, during the last decade, there have been several election years where more than three seats were available due to deaths(13) and, in 1988, due to Judge McCormick's election to the seat of presiding judge.(14) As a result, the court has had a fairly large turnover rate,(15) making a determination of each judge's judicial philosophy difficult and also causing a lack of consistent policy regarding state constitutional adjudication.(16)

    As the result of an amendment to the Texas Constitution in 1891, most appeals from criminal convictions are directed to the courts of appeal, leaving only death penalty cases within the exclusive jurisdiction of the Court of Criminal Appeals.(17) Although the court has discretion to review any cases heard by the courts of appeal, it is allotted a "more supervisory and policy-making role in the criminal justice process" than an activist role.(18) Professor George E. Dix noted the court has always had a tradition of "judicial passivity in criminal litigation."(19) Procedural rules such as barring the court from commenting on evidence presented in a criminal litigation,(20) granting a right to criminal defendants to have a jury determine factual questions raised in jeopardy claims,(21) and granting a right to a defendant for a separate jury determination of his competency to stand trial,(22) indicated the court's passive role.(23) In addition, the court has demonstrated its passivity by interpreting the state constitution in accordance with the Supreme Court's interpretation of the United States Constitution.(24)

    In recent years, however, the court has taken a more active role in its analysis of the Texas Constitution when deciding criminal cases.(25) More specifically, the court has, on occasion, interpreted the Texas Constitution to provide greater protection to criminal defendants than the Federal Constitution.(26) However, before determining the level of independence demonstrated by the Court of Criminal Appeals, it is helpful to first understand the principles and tenets of state constitutional adjudication.

    As the constitutional provisions of many state constitutions are similar or identical to those of the Federal Constitution, state courts will, in interpreting the state constitution, sometimes look to the case law surrounding the history and interpretation of the Federal Constitution.(27) In the arena of state constitutional adjudication, four methods have emerged: lockstep; dual reliance; supplemental or interstitial; and supremacy.(28)

    The lockstep approach "is not really an approach to independent state constitutional adjudication at all; the state court merely follows the dictates of the United States Supreme Court" in its interpretation of the analogous federal provision.(29) The court, by harmonizing with the Supreme Court, never really develops an independent body of state constitutional law.(30) Under a dual reliance method, the court addresses both federal and state constitutional law simultaneously, even when faced with an argument regarding state grounds.(31) However, if an opinion is decided under federal law, the state law treatment is deemed dicta, and vice-versa.(32) When applying a supplemental or interstitial model, the court looks first to federal law and, if federal law is not offended, then to state law to determine whether the state law provides greater protection.(33) Commentators argue that "the interstitial approach ... reflects the modern role of the U.S. Constitution as the `basic protector of fundamental liberties,' while allowing states the opportunity to supplement the minimum protections afforded by the U.S. Constitution."(34) Finally, under the primacy approach, the court faced with both a state and federal constitutional issue will analyze state law first, then federal law.(35)

    Prior to 1991, the Court of Criminal Appeals consistently applied the lockstep approach when analyzing the Texas Constitution.(36) However, in 1991, the court decided Heitman v. State(37) and rejected the lockstep approach and further recognized the court's right to independently interpret the state constitution.(38) Although occasionally applying the dual reliance model after Heitman,(39) the court has most often applied the supplemental approach when faced with a question of both federal and state law.(40) The court has not applied the supplemental approach in the typical fashion of deciding first under federal law and then under state law.(41) Moreover, many of the cases decided since Heitman do not fall under any particular category because only state law was argued, or the court was deciding whether a federal standard applied under the Texas Constitution.(42) Although the court has engaged in nearly all of the methods of interpretation, the Court of Criminal Appeals has settled upon providing an independent analysis to the Texas Constitution.(43)


    1. Search and Seizure

      In a 1994 case, Autran v. State,(44) the Texas Court of Criminal Appeals for the first time interpreted the Texas search and seizure provision as granting greater protection than the Supreme Court's interpretation of the United States Constitution.(45) Prior to Autran, the court progressed toward independent state adjudication by first rejecting the lockstep approach which had been regularly applied in Texas search and seizure cases(46) and, thereafter, formally recognized the power of the court to interpret the Texas Constitution separately from the United States Constitution.(47) Although the court rejected the lockstep method, it continued to interpret article I, section 9 of the Texas Constitution(48) and the Fourth Amendment to be "in all material aspects, the same."(49) During. the period of 1988 through 1994, the court followed a "crime-control model"(50) by exhibiting extreme reluctance to create greater protections for criminal defendants.(51)

      In Eisenhauer v. State(52) and Bower v. State,(53) Judge McCormick(54) wrote the plurality opinions. As will become increasingly clear throughout this High Court Study, Judge McCormick strongly supported crime control and opposed providing greater protections for criminal defendants than those already recognized by the' United States Supreme Court.(55) For example, in Eisenhauer, a case dealing with the sufficiency of probable cause for a warrantless search, Judge McCormick led the court in its abandonment of the two-prong Aguilar-Spinelli test, and in the adoption, instead, of the Supreme Court's more discretionary "totality of the circumstances" test.(56) In 1964, the Supreme Court created the Aguilar-Spinelli test,(57) which the Court of Criminal Appeals applied thereafter.(58) However, Judge McCormick concluded the Court of Criminal Appeals "applied the...

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