Breaking Stride: The Texas Court of Criminal Appeals' Rejection of the Lockstep Approach 1988-1998

I. INTRODUCTION 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. II. THE COURT OF CRIMINAL APPEALS(10) 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 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. …