Natividad Valencia A/K/A "Tivie" Valencia v. State

NUMBER 13-02-020-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ NATIVIDAD VALENCIA A/K/A “TIVIE” VALENCIA, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 103rd District Court of Cameron County, Texas. __________________________________________________________________ CONCURRING MEMORANDUM OPINION Before the Court En Banc on Motion for Rehearing En Banc Concurring Memorandum Opinion by Justice Castillo This case is now before the Court on motion for rehearing en banc. A majority of the panel denied appellant Natividad Valencia's motion for rehearing. Valencia asks us to consider en banc the majority's opinion and address: (1) a "bilateral" requirement in the bribery statute as discussed in the dissenting opinion; and (2) "relevance versus prejudice" in connection with his assertion of erroneously admitted hearsay evidence. I agree with the majority's decision to deny rehearing en banc. I write separately to clarify the criteria applicable to en banc reconsideration. Appellate court panels are essentially three-judge courts. Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.–Houston [1st Dist.] 2002, pet. ref'd.) (Jennings, J., concurring). En banc review at intermediate appellate courts was instituted to maintain uniformity of a court's decisions as a single, unitary body, even though the court may sit in panels. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a motion for rehearing by an en banc court: En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. Tex. R. App. P. 41.2(c); see also Tex. R. App. P. 49.7. The rule is clear. Univ. of Tex. Med. Branch v. Barrett, 112 S.W.3d 815, 820 (Tex. App.–Houston [14th Dist.] 2003, rule 53.7(F) mot. for extension of time filed) (en banc) (Anderson, J., dissenting). When there is no conflict among panel decisions, the existence of "extraordinary circumstances" is required before en banc consideration may be ordered. Thompson, 89 S.W.3d at 856 (Jennings, J., concurring). The standard for en banc consideration is not whether a majority of the en banc court disagrees with all or a part of a panel opinion. Id. Neither is an assertion that an issue is "important" sufficient. Id. Thus, there are only two bases on which to grant en banc review: conflict among panel decisions or "extraordinary circumstances." See Barrett, 112 S.W.3d at 820 (Anderson, J., dissenting). In his motion for rehearing en banc, Valencia has neither identified a conflict in our jurisprudence nor articulated extraordinary circumstances requiring full court review. En banc consideration of this case is not necessary to secure or maintain uniformity of this Court's decisions. The divided panel decision does not amount to a conflict in our jurisprudence or an extraordinary circumstance. The decision was the panel's to make. The issues in this case are important, but Valencia has not met the criteria imposed by rule 41.2. Tex. R. App. P. 41.2(c). Therefore, respectfully, I concur with the decision to deny rehearing en banc. ERRLINDA CASTILLO Justice Do not publish. Tex. R. App. P. 47.2(b). Concurring Memorandum Opinion delivered and filed this 19th day of August, 2004.