Opinion
No. 05-09-00765-CR
Opinion Filed April 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 86th Judicial District Court Kaufman County, Texas, Trial Court Cause No. 26930-86.
Before Justices RICHTER, LANG-MIERS, and MYERS.
MEMORANDUM OPINION
A jury convicted appellant of robbery, enhanced by a prior felony conviction, and sentenced him to seventy-five years' imprisonment. In a single issue, appellant asserts Texas Rule of Evidence 606(b) is unconstitutional and deprived him of the opportunity to investigate jury misconduct. Concluding we lack authority to issue advisory opinions and therefore declining to address appellant's issue, we affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Tex. R. App. P. 47.4 because the law to be applied in this case is well settled. During jury deliberations in the punishment phase of trial, the jury sent two notes to the trial judge. Upon conclusion of trial, appellant filed a motion for new trial, globally asserting that the verdict was contrary to the law and the evidence and the jury engaged in misconduct that deprived him of a fair and impartial trial. The motion, which was unsupported by evidence or affidavits, was denied. Subsequently, appellant filed a "Motion to Declare Statute Unconstitutional," complaining that Tex. R. Evid. 609(b) is unconstitutional. This motion was also denied. Appellant now contends he was denied a fair trial and deprived of due process of law under the Texas and United States constitutions because rule 609(b) precludes pursuit of a claim of jury misconduct. Appellant concedes that courts considering this issue have held otherwise, see Hines v. State, 3 S.W.3d 618, 622 (Tex. App.-Texarkana 1999, pet ref'd); Sanders v. State, 1 S.W.3d 885, 887 (Tex. App.-Austin 1999, no pet.); Richardson v. State, 83 S.W.3d 332, 362 (Tex. App.-Corpus Christi 2002, pet. ref'd), but urges that we "revisit [that] position" and "change that way of thinking." Significantly, appellant affirmatively emphasizes that he does not claim the jury actually engaged in misconduct, nor does he assert the motion for new trial should have been granted. He does not seek reversal of his conviction or otherwise contend the trial court erred. Instead, he claims our sister courts have reached the wrong conclusion, and requests that we rectify their purportedly errant reasoning by declaring Tex. R. Evid. 606(b) unconstitutional. The relief requested, however, is not within our authority to grant. Texas courts do not have the authority to issue an advisory opinion. Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991); Dix v. State, 289 S.W.3d 333, 335 (Tex. App.-Eastland 2009, pet. ref'd). An advisory opinion results when a court attempts to decide an issue that does not arise from an actual controversy capable of final adjudication. Dix, 289 S.W.3d at 335; see also Gonzales v. State, 864 S.W.2d 522, 524 (Tex. Crim. App. 1993) (deciding issue unnecessary to disposition of a case is advisory). The issue on which appellant seeks to have us opine has no bearing on the disposition of the case. Because we lack the authority to issue advisory opinions, we decline to address this issue. The trial court's judgment is affirmed.