Armstrong v. State, 805 S.W.2d 791 (Tex. Crim. App. 1991). · Go Syfert
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Armstrong v. State, 805 S.W.2d 791 (Tex. Crim. App. 1991). Cases Citing This Book View Copy Cite
117 citation events (67 in the last 25 years) across 3 distinct courts.
Strongest positive: Salinas, Orlando, 523 S.W.3d 103 (Tex. Crim. App. 2017)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Under fire: who is questioning this case
Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Dissent In re State of Texas ex rel. Ken Paxton, No. WR-97,914-01 (Tex. Crim. App. Sept. 11, 2026)
“E.g., Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).”
Dissent Salinas, Orlando, 523 S.W.3d 103 (Tex. Crim. App. 2017)
“Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.”
Dissent Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App. 1998)
“Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.Cr.App.1988) (“It is well-established that this Court is without constitutional or statutory authority to ... render advisory opinions-”); Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991); and, Tex. Const. art.”
Concurrence Connor v. State, 877 S.W.2d 325 (Tex. Crim. App. 1994)
“Although we initially decided to review appellant’s restitution grounds, the majority, purporting to rely on Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991), concludes resolution of those grounds would be advisory.”
Concurrence Gonzales v. State, 864 S.W.2d 522 (Tex. Crim. App. 1993)
“See also, Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.Cr.App.1988) (“It is well-established that this Court is without constitutional or statutory authority to ... render advisory opinions_”); Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991) (“This Court and the Court of Appeals are without authority to render advisory opinions.”).”
Concurrence Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014)
““It is well-established that this Court is without constitutional or statutory authority to ... render advisory opinions.” Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim.App.1988); see also Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App. 1991) (“This Court and the Court of Appeals are without authority to render advisory opinions.”). 10 “ ‘Judicial power’ is the power of a court to…”
How cited ↗
Cited for
At page 794 Court authority to render advisory opinions48 citing casesalthough State had the right to appeal a particular issue under Article 44.01(c), court of appeals nevertheless correctly dismissed State's appeal to avoid rendering an advisory opinion, since appellate courts in Texas "are without authority to render advisory opinions9 citing courts put it this way · 46 listed here
  • Salinas, Orlando, 523 S.W.3d 103 (Tex. Crim. App. 2017).published
    (This Court and the Court of Appeals are without authority to render advisory opinions.)
  • Whitfield, Robert, No. PD-0865-13 (Tex. Crim. App. May 7, 2014).published
    (This Court and the Court of Appeals are without authority to render advisory opinions.)
  • Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014).published 2 cites
    (This Court and the Court of Appeals are without authority to render advisory opinions.)
  • Ex Parte Jennifer Elaine Sisk, No. 14-10-00870-CR (Tex. App.—Houston [14th Dist.] Apr. 28, 2011).unpublished
    ([T]he Court[s] of Appeals are without authority to render advisory opinions.)
  • In re State of Texas ex rel. Ken Paxton, No. WR-97,914-01 (Tex. Crim. App. Sept. 11, 2026).published
    E.g., Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).
  • Daniel Ray Garcia v. State of Texas, No. 11-21-00145-CR (Tex. App.—Eastland July 25, 2024).unpublished
    Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012); Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).
  • Jonathan Fulton Smith v. State of Texas, No. 06-22-00052-CR (Tex. App.—Texarkana Mar. 14, 2023).unpublished
    Even so, “[t]he State’s right to cross-appeal is limited,” id. at 601 , because we “are without authority to render advisory opinions,” id. (quoting Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991)).
  • Zachary Logan Vaught v. State of Texas, No. 05-20-00411-CR (Tex. App.—Dallas Jan. 31, 2022).unpublished
    “Any opinion by an appellate court ruling on a moot issue would be purely advisory, and Texas courts have no jurisdiction to issue advisory opinions.” Garcia v. State, No. 05-19-01136-CR, 2021 WL 3645104 , at *8 (Tex. App.—Dallas Aug. 17,…
  • Ex Parte: Jordan Jones, No. 12-17-00346-CR (Tex. App. May 26, 2021).unpublished
    The court of appeals 36 Ex parte Usener, 391 S.W.2d 735, 736 (Tex. Crim. App. 1965). 37 See id.; Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991). 38 See Thompson, 442 S.W.3d at 339 . 39 Lo, 424 S.W.3d at 13-14, 16-17. 40 Tho…
  • Jones, Ex Parte Jordan Bartlett, 625 S.W.3d 118 (Tex. Crim. App. 2021).published
    The court of appeals 36 Ex parte Usener, 391 S.W.2d 735, 736 (Tex. Crim. App. 1965). 37 See id.; Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991). 38 See Thompson, 442 S.W.3d at 339 . 39 Lo, 424 S.W.3d at 13-14, 16-17. 40 Tho…
Show 36 more citing cases
  • in the Matter of B. M., No. 01-18-00898-CV (Tex. App.—Houston [1st Dist.] Apr. 30, 2019).published
    (no power to issue advisory opinion on issues not advanced by party on appeal)
  • Flores, Antonio R., No. PD-0026-18 (Tex. Crim. App. June 27, 2018).published
    Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939)). 4 Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Delarosa, Jose Ramiro, No. PD-1406-14 (Tex. Crim. App. Feb. 6, 2015).published 2 cites
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Travis O'Neal Bluntson v. State, No. 13-13-00583-CR (Tex. App.—Corpus Christi June 26, 2014).unpublished
    App. 2012), see also Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • In re Tammy Fountain, No. 01-12-00704-CV (Tex. App.—Houston [1st Dist.] Dec. 10, 2013).published
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Robert Whitfield v. State, 409 S.W.3d 11 (Tex. App.—Houston [1st Dist.] 2013).published
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991); Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.Crim.App.1988); see also Tex. Const. art.
  • State v. Chupik, 343 S.W.3d 144 (Tex. Crim. App. 2011).published 2 cites
    (although State had the right to appeal a particular issue under Article 44.01(c), court of appeals nevertheless correctly dismissed State's appeal to avoid rendering an advisory opinion, since appellate courts in Texas…)
  • State of Texas v. Chupik, Randall, No. PD-0960-10 (Tex. Crim. App. June 15, 2011).published
    (although State had the right to appeal a particular issue under Article 44.01(c)
  • Dix v. State, 289 S.W.3d 333 (Tex. App.—Eastland 2009).published 2 cites
    Id. at 646-47 ; Gonzales, 864 S.W.2d at 524 ; Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Raul Guerrero v. State, No. 08-05-00284-CR, 2007 Tex. App. LEXIS 3837 (Tex. App.—El Paso May 17, 2007).published
    Armstrong v. State , 805 S.W.2d 791, 794 (Tex.Crim.App. 1991); Ex parte Ruiz , 750 S.W.2d 217, 218 (Tex.Crim.App. 1988); In re Salgado , 53 S.W.3d 752, 757 (Tex.App.--El Paso 2001, orig. proceeding).
  • State v. Mercier, 164 S.W.3d 799 (Tex. App.—Corpus Christi 2005).published
    Armstrong v. *812 State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991); Hargrove v. State, 774 S.W.2d 771, 773 (Tex.App.-Corpus Christi 1989, pet. ref'd).
  • State v. Massey, 132 S.W.3d 68 (Tex. App.—Eastland 2004).published
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991).
  • Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App. 1998).published 2 cites
    Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.Cr.App.1988) (“It is well-established that this Court is without constitutional or statutory authority to ... render advisory opinions-”); Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991); a…
  • Fontenot v. State, 932 S.W.2d 185 (Tex. App.—Fort Worth 1996).published
    II, § 1; Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).
  • Collins v. State, 912 S.W.2d 864 (Tex. App.—Beaumont 1995).published 2 cites
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).
  • Lemell v. State, 915 S.W.2d 486 (Tex. Crim. App. 1995).published 2 cites
    Connor v. State, 877 S.W.2d 325 , 325-26 n. 1 (Tex.Crim.App.1994); Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991). .
  • Ex Parte Wilhelm, 901 S.W.2d 956 (Tex. App.—Houston [1st Dist.] 1995).published
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).
  • Connor v. State, 877 S.W.2d 325 (Tex. Crim. App. 1994).published 4 cites
    Although we initially decided to review appellant’s restitution grounds, the majority, purporting to rely on Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Cr.App.1991), concludes resolution of those grounds would be advisory.
  • State ex rel. Holmes v. Honorable Court of Appeals for the Third Dist., 885 S.W.2d 389 (Tex. Crim. App. 1994).published 2 cites
    See, e.g., Garrett v. State, 749 S.W.2d 784, at 803 (Tex.Cr.App.1988) (Plurality opinion on State's motion for rehearing); Ex parte Ruiz, 750 S.W.2d 217, at 218 (Tex.Cr.App. 1988); Sims v. State, 792 S.W.2d 81, at 82 (Tex.Cr.App.1990); Arm…
  • State v. Howell, 871 S.W.2d 237 (Tex. App.—Dallas 1993).published
    Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).
  • Gonzales v. State, 864 S.W.2d 522 (Tex. Crim. App. 1993).published 2 cites
    (This Court and the Court of Appeals are without authority to render advisory opinions.)
  • Nevarez v. State, 847 S.W.2d 637 (Tex. App.—El Paso 1993).published
    Given the disposition of the cause, we are unable to address this contention. *648 Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).
  • SLEDGE, DONNELL v. State of Texas, 666 S.W.3d 592 (Tex. Crim. App. 2023).published
    (explaining that, other than perhaps in the case of questions about Texas criminal law certified to this Court by a federal appellate court, the Court is “without authority to render advisory opinions)
  • Margarito Martin Garcia v. State of Texas, 633 S.W.3d 57 (Tex. App.—Dallas 2021).published
    See Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012); Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).
  • Ashley Becker v. State, No. 07-19-00286-CR (Tex. App.—Amarillo Aug. 19, 2020).unpublished
    (stating that Texas courts “are without authority to render advisory opinions)
  • Coby Robert Gordy v. State, No. 12-14-00063-CR (Tex. App.—Tyler Feb. 27, 2015).published
    See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • State v. Kori J. Marra, No. 13-13-00449-CR (Tex. App.—Corpus Christi Jan. 30, 2015).unpublished
    See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Wilfred Padilla Jr. v. State, No. 13-12-00007-CR (Tex. App.—Corpus Christi Oct. 24, 2013).unpublished
    See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
  • Ferguson v. State, 927 S.W.2d 251 (Tex. App.—Fort Worth 1996).published
  • Linder v. State, 828 S.W.2d 290 (Tex. App. 1992).published
  • Hackett v. State, 160 S.W.3d 588 (Tex. App.—Waco 2005).published
  • Thomas Eugene Harper v. State, No. 03-91-00310-CR (Tex. App.—Austin June 10, 1992).unpublished
  • Jimmy Martinez v. State, No. 03-99-00487-CR (Tex. App.—Austin Mar. 23, 2000).unpublished
  • State v. Selina Mireles, No. 03-18-00453-CR (Tex. App.—Austin Aug. 1, 2019).unpublished
  • Ex parte Luna, 24 S.W.3d 606 (Tex. App.—Fort Worth 2000).published
  • Lattin v. Barrett, 153 S.W.3d 700 (Tex. App.—Waco 2005).published
At page 793 Determining whether magistrate act compliance is a question of law15 citing casesholding that State could raise a "cross appeal" on the legal question of whether the defendant's prior conviction used for enhancement was "void" as the trial judge had ruled, but concluding that the State was not entitled to have that issue resolved because the defendant did not prevail on appeal;…1 citing court put it this way · 10 listed here
  • Jordan Jermaine Thompson v. State of Texas, No. 06-24-00024-CR (Tex. App.—Texarkana Dec. 12, 2024).unpublished
    Armstrong v. State, 805 S.W.2d 791, 793 (Tex. Crim.
  • Pfeiffer, Lavern A., No. PD-1234-11 (Tex. Crim. App. Apr. 18, 2012).published 2 cites
    The State’s right to cross-appeal is limited, however, as noted in our prior decision in Armstrong v. State.29 An appellate court will not address the State’s cross-appeal issue “if the State would not be able to implement a decision in it…
  • Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012).published 2 cites
    (holding that State could raise a "cross appeal" on the legal question of whether the defendant's prior conviction used for enhancement was "void" as the trial judge had ruled, but concluding that the State was not entit…)
  • State v. Webb, 980 S.W.2d 924 (Tex. App.—Fort Worth 1998).published
    Id. (citing Armstrong v. State, 805 S.W.2d 791, 793-94 (Tex.Crim.App.1991)).
  • In re The State of Texas, 390 S.W.3d 439 (Tex. App.—El Paso 2012).published 2 cites
    See Armstrong v. State , 805 S.W.2d 791, 793-94 (Tex.Crim.App. 1991).
  • Melissa G. Lively v. State, No. 07-09-00313-CR (Tex. App.—Amarillo July 26, 2011).unpublished 3 cites
    See Armstrong v. State, 805 S.W.2d 791, 793 ( Tex.Crim.App . 1991); Hargrove v. State, 774 S.W.2d 771, 772-73 ( Tex.App .—Corpus Christi 1989, pet. ref’d ) (both declining to address State’s cross-appeals when convictions affirmed).
  • State v. Aguilar, 260 S.W.3d 169 (Tex. App.—Houston [1st Dist.] 2008).published
  • Dustin Louis Hall v. State, No. 14-10-00171-CR (Tex. App.—Houston [14th Dist.] Feb. 24, 2011).unpublished
  • In re the STATE of Texas ex rel. David P. WEEKS, 392 S.W.3d 280 (Tex. App.—Waco 2012).published
  • Fennell v. State, 958 S.W.2d 289 (Tex. App.—Fort Worth 1997).published
Retrieving the full opinion text from the archive…
Charles Dwight ARMSTRONG, Appellant,
v.
the STATE of Texas, Appellee
128-90.
Court of Criminal Appeals of Texas.
Mar 20, 1991.
Published opinion
805 S.W.2d 791
1991 Tex. Crim. App. LEXIS 59
1991 WL 35880
Clinton and Overstreet, JJ., concurred in result., John D. Nation, Dallas, for appellant., John Vance, Dist. Atty., and Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
White, Clinton, Overstreet.
Cited by 96 opinions  |  Published

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted in a bench trial of the offense of burglary of a building. At his punishment hearing, appellant pled not true to the second paragraph and true to the third paragraph [1] of the indictment. The trial court excluded the State’s proof of the second paragraph and found those allegations not true. The court then found the allegations in the third paragraph true and sentenced appellant to twenty years confinement.

Appellant appealed and the State cross-appealed. The State contended that the trial court’s actions had the effect of dismissing a portion of the indictment and also that this was a matter of law urged after appellant was convicted and appealed the judgment. See Article 44.01(a)(1) and (c), V.A.C.C.P. The Court of Appeals affirmed the conviction and dismissed the State’s appeal. Armstrong v. State, 781 S.W.2d 937 (Tex.App.—Dallas 1989). We granted the State’s petition to decide whether the trial court’s determination that evidence of the prior conviction was inadmissible was appealable under Art. 44.01(c).

At the penalty hearing, the State offered a copy of a “pen packet” in support of the enhancement allegations in the second paragraph. Appellant objected on the[*793] ground that certain provisions of the Dallas County Magistrates Act [2] had not been followed and therefore the conviction was void. The trial judge "granted the defendant’s motion” and made factual findings that the Act had not been followed. In addition, the docket sheet reflects that the trial court found “as a matter of law that the conviction could not be used for enhancement purposes.” The Court of Appeals decided the trial court’s finding that the enhancement paragraph was “not true” was an evidentiary determination and that the State may not appeal from that determination of a question of fact. We disagree with this holding by the majority opinion of the Court of Appeals.

Article 44.01(c) provides that the State “is entitled to appeal a ruling on a question of law if the defendant is convicted and appeals the judgment.” We agree with the dissenting opinion of Justice Baker of the Court of Appeals that “the question of whether a judge has complied with the requirements of the Dallas County Magistrate’s Act is one of law.” Armstrong v. State, 781 S.W.2d, at 945, and cases cited therein. Therefore, as Justice Baker pointed out, because appellant was convicted and is appealing, and because the issue of whether the conviction alleged for enhancement was void is a question of law, the State’s cross-appeal had merit. The State may indeed bring this issue on appeal, pursuant to Art. 44.01(c).

This merely begins our analysis. The related question is whether the State is entitled to a determination of the issue raised. We are aware that at least two courts of appeals have refused to consider a State’s appeal under Art. 44.01(c) when it was not. ultimately dispositive of the appeal. Hargrove v. State, 774 S.W.2d 771 (Tex.App.—Corpus Christi 1989, pet. ref’d); Chavez v. State, 769 S.W.2d 284 (Tex.App.—Houston [1st] 1989, pet. ref’d). See Tex. R.App.Pro. 90. We are faced with a similar circumstance in this cause.

The Court of Appeals affirmed the conviction, hence no retrial will be forthcoming. After appellant sought an appeal from this affirmance, the State brought this appeal from the trial court’s decision to exclude evidence of one of appellant’s prior convictions. [3] Because appellant was denied relief on direct appeal and there will be no retrial, the State may not attempt to try appellant again as a habitual criminal in this cause, by allegation of the same or a different prior conviction. The constitutional proscriptions against being twice placed in jeopardy for the same offense prohibit the State from attempting to again prove appellant’s status as a habitual[*794] offender. Ex parte Gonzales, 707 S.W.2d 570 (Tex. Cr.App. 1986); Ex parte Bullard, 679 S.W.2d 12 (1984). The United States Supreme Court has held that a “judgment of acquittal, however erroneous, bars further prosecution on any aspect ... and hence bars appellate review of the trial court’s error.” Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43, 57 (1978).

Were the Court of Appeals to address the State’s argument and find the State was entitled to the relief it sought, the State could not relitigate the habitual offender allegation. Any opinion from the Court of Appeals deciding the validity of the judgment in the enhancement allegations of the second paragraph would therefore be advisory. This Court and the Court of Appeals are without authority to render advisory opinions. [4] See Ex parte Ruiz, 750 S.W.2d 217 (Tex.Cr.App.1988).

The judgments of the Court of Appeals and of the trial court are affirmed.

CLINTON and OVERSTREET, JJ., concur in the result.
1

. In the indictment in the instant case, the second paragraph of the indictment was the paragraph which contained the first enhancement allegation of the indictment. The third paragraph of the indictment contained the second enhancement allegation. Therefor, in the instant case appellant pled not true to the first enhancement paragraph and true to the second enhancement paragraph.

2

. Tex.Gov’t.Code Ann. § 54.501 et seq. (Vernon 1988). The specific provisions that appellant had asserted were not followed by the trial judge in the prior cause and are not necessary for determination of the issues raised in this petition and will not be discussed.

3

. Even though we find that the state’s argument on appeal will not be reached, we do believe the trial court’s actions in the instant cause were in error. As the dissenting opinion of Justice Baker pointed out, the trial court excluded the evidence of appellant’s second prior conviction based upon an impermissible collateral attack by appellant upon that conviction:

"In this case, the trial court held that because the evidence offered by the State as proof of the enhancement paragraph reflected that the presiding judge did not have a statement of facts before him, the judge could not have properly reviewed and approved of the magistrate’s findings. The trial judge held that because of that fact, as a matter of law, the second paragraph conviction could not be used for enhancement purposes. In my view, this conclusion is erroneous, and this Court’s decision in Allen v. State, 748 S.W.2d 16 (Tex. App. — Dallas, 1988, no pet.) controls. That is, that a statement of fact is not absolutely required in order for a district judge to adequately review the actions of a magistrate. See Allen, 748 S.W.2d at 18. The trial court’s ruling that the prior conviction was void on that ground is erroneous as a matter of law.
... In my view the evidence was not excludable for any reason because appellant’s attack on its admissibility amounts to an impermissible collateral attack on the sufficiency of the evidence to support the underlying conviction. See Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Cr.App.1978); Williams v. State, 767 S.W.2d 868, 871 (Tex.App. — Dallas 1989, per refd).
Armstrong v. State, 781 S.W.2d at 945.

We agree with the conclusion of Justice Baker that appellant’s argument before the trial court was an impermissible collateral attack on the conviction alleged for enhancement.

4

. This Court does have authority to answer certified questions of law. See Tex.R.App.Pro. 214. That situation is not presented here.