Keasler, J., filed this concurring opinion in which Keller, P.J. and Hervey, J. join.

The majority says that Boykin v. State¹ does not address the situation of a statute’s silence, and as a result, the court must “round out” the law and “impose its own construction.”² I disagree.

Boykin instructs courts to apply the plain language of the statute unless the statute is ambiguous or leads to an absurd result which the legislature could not possibly have intended.³ The Court says this language “does not tell us what to do when the legislature leaves a gap” through silence. But silence falls well within the umbrella of ambiguity. If a statute is silent on a matter, it is ambiguous. We have recognized this many times.⁴ Similarly, this statute is silent on whether “an indictment” refers to an indictment alleging the same offense or any offense. The majority’s efforts to bring this case outside the ambit of Boykin are wholly unpersuasive.

I am also troubled by the Court’s new guidelines for statutory construction. This new category of “silent but not ambiguous” statutes is dangerous. The majority today gives courts the power to “round out” statutes and “impose their own construction” whenever they perceive statutes as silent. This will take us far from the literal text of the statute and gives courts none of the guidelines that Boykin provides. Boykin limits the extra-textual journey to legislative history, other statutes, consequences of the construction, etc. The Court’s opinion today provides no such limits and will serve as precedent for courts to strike out on their own in interpreting statutes. This is a bad idea.

I would apply Boykin to this case and conclude that this statute is ambiguous. I would then consider extra-textual sources, which the Court does in the remainder of its opinion. I would reach the same conclusion that the Court does regarding Art. 12.05(b).

I therefore concur in the Court’s judgment.

DATE DELIVERED: February 4, 2004

PUBLISH

¹ 818 S.W.2d 782 (Tex. Crim. App. 1991).

² Ante, slip op. at 6-7.

³ Boykin, 818 S.W.2d at 785.

⁴ See Brown v. State, 98 S.W.3d 180, 183-85 (Tex. Crim. App. 2003) (finding ambiguous a statute silent on definition of “voluntarily”); State v. Roberts, 940 S.W.2d 655, 658 (Tex. Crim. App. 1996) (finding ambiguous a statute silent on meaning of phrase “motion to suppress evidence”); Lane v. State, 933 S.W.2d 504, 514-15 (Tex. Crim. App. 1996) (plurality op.) (finding ambiguous a statute silent on meaning of “provide”); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 587 (Tex. Crim. App. 1993) (finding ambiguous a statute silent on whether “a case” refers to a criminal case or a civil case).