Davis v. State
721 S.W.2d 857
Tex. Crim. App.
1986
Check Treatment

*1 857 whether, step to decide in the con- next is case, give text of the the failure to that DAVIS, II, Appellant, Frank W. impact notice had an on the defendant’s and, finally, ability prepare a defense The of STATE noted, great impact it As how an was. No. 087-86. Appeals did not have the Court of benefit of this decision. Appeals Court of Criminal Therefore, pursuant authority to the con- by Tex.R.App.Pro. ferred on this Court Oct. 200(a), we refuse the State’s petition our motion. the case to own We remand Appeals the Court of for the Third Su- preme Judicial District for reconsideration State, light supra. of Adams v. See State, (Tex.Cr. Sanchez v. Minton, Young, Roy Q. Scott A. John L. App.1982); Froyd v. Foster, Austin, for appellant. (Tex.Cr.App.1982). Horn, Jeffrey Atty., L. Van Dist. Lock- expresses opinion This Court no with re- hart, Huttash, Austin, Atty., Robert State’s spect disposition to the ultimate of this for the State. contention but finds that the Court

Appeals should reassess the motion to State, supra. quash light of Adams v. OPINION ON STATE’S PETITION FOR ONION, P.J., would the State’s DISCRETIONARY REVIEW Petition. PER CURIAM. McCORMICK, J., dissents to the Appeal is taken from a conviction for remand and would the State’s $10,000. theft over Punishment was as petition. imprisonment sessed at years for 10 and a $10,000 Appellant’s fine. was conviction CAMPBELL, J., participating. reversed and remanded the Court of CLINTON, Judge, dissenting. Supreme for the Third Judicial says “pur opinion The of the Court District. Davis v. 700 678 S.W.2d authority conferred on this (Tex.App. suant to the — Austin 200(a) and by Tex.R.App.Pro.Rules petition The State 2(b), we refuse State’s regarding three contentions review raises grant discretionary review on our own mo Appeals’ opinion. specifi- the Court of We 1 of the Austin Since the decision tion.” discre- cally refuse the State’s delivered almost a tionary review on those three contentions. now, year ago Davis v. 700 S.W.2d However, subsequent Ap- to the Court of 1983), explana an (Tex.App. — Austin peals’ opinion, this decided Adams v. extraordinary of this turn events tion (Tex.Cr.App.1986), in order. that, deciding held the ade- wherein juris- has constitutional charging against instrument That this Court quacy of a diction, authority to review a power and quash, step the first is to deter- motion to in criminal charging instrument decision of a court mine whether “as convey requisite item of case on its failed to some ” V, 5; law, gainsaid. Article given, the cannot be notice. If sufficient notice is not emphasis throughout indicated. is mine unless other- wise 1. All *2 n 4.04, 2, 44.45(a) (first Articles tending 44.01 and days’ “the time before a court sentence), V.A.C.C.P.2 appeals’ decision .... becomes final for days.” 303(c). an additional Rule 44.33(a) 44.45(c) Articles and authorize period judges Within extended if four posttrial this Court to make rules of and agree it, did not to the review decision of appellate procedure hearing for criminal appeals the court final. became On the remaining pro- actions not inconsistent with hand, granting pre- other an order review Procedure, visions of the Code of Criminal becoming vented the decision from final including promulgating implement rules to pending further order of the Court. Rule discretionary jurisdiction, power its review 303(d) (e). and authority. In 1981 this Court did adopt promulgate deed Rules of Post Though rarely procedure utilized the Appellate Trial and Procedure in Criminal in, proved e.g., Gentry effective v. 44.33, following Cases. See rules Article (Tex.Cr.App.1982).4 640 S.W.2d 899 V.A.C.C.P. Substantially the same scheme is now 302, Tex.Cr.App. pro- Rules 303 and 304 provided by Tex.R.App.Pro.Rules 86(a), 200 vided a scheme by which the Court would by engaging pre- and 201. Other than the either on review its process fortyfive days scribed within after own motion accordance with Rule 303 or cetera, judgment et pro- this Court has not petition pursuant on to Rule 304. Former procedure exercising vided a rule of for its 42.04a, supra, prescribed article that a deci- discretion to review on its own motion a appeals sion of a court of shall be final 45 appeals. decision of a court days ruling after the final of the court however, usually provided, As is “in the unless, alia, inter “a for review a decision or for oth- has days been filed within 30 after the final good shown,” appellate er cause courts ruling appeals,”3 of the court of or “[this “may suspend requirements provisions has filed an order for review of the Court] any particular applica- case on rule a decision on its own motion.” Within time party tion of a or on its own motion and constraints former article 44.- may proceedings order in accordance with 45, supra, to on its 2(b). Tex.R.App.Pro.Rule its direction.” 209, Court fashioned Rules 210 and 303 in By citing majority and 200 a way peti- such a as to ensure that a when causing the Court on its own motion to do by party tion for review was not filed a just that. thirty days, any judge within still had fif- Suspension procedure of solemn rules of days to file an teen thereafter order for governing review functions of this Court is review. The order for was a review mecha- matter, provide lightly a serious undertaken. nism to sufficient time for the Indeed, if this Court has done so in these decide whether to motion; circumstances, majority prece- staying its own it had the effect of cites no appeals My disagreement majority mandate of the court of and ex- dent. with requires 2. The second sentence read: "An order for re- federal statute that construction of the must, be permissible scope filed before the decision of the term "item” or to define the (Tex. court of becomes final as determined [Gentry of search.’ Article 42.04a.” It and Article 42.04a were both repealed 80, Accordingly, App. Dallas)] 2. at n. we — Appellate when new Texas Rules of granted Attorney the Criminal District leave to 1, September Procedure became effective 1986. Alas, appellate for file brief the State. counsel 201, Tex.R.App.Pro.Rule “Discretionary See now appellant, try for who did not the case and Review Without Petition” and Rule “Man- appears appointed, has not to have been .... date.” appel any advocacy favored us with in behalf of however, See, discretionary lant on our review. 209(c) provided 3. Rule formulae for determin- (Tex.Cr.App. Ayala v. ruling ing day of "final of the Court.” See now fact, review As matter of Tex.R.App.Pro.Rules 86 and granted by initiative. the Court on its own ****’’ impres 4. "Not question one of first is the Id., 900, n. 2. at sion in this but the of the court 'any other state or below was unable to find implied is in finding that there is some identified, albeit not remanding this cause to the Austin for “reconsideration

light of Adams v. State [707

(Tex.Cr.App.1986) grant- Since first ].”

ed the cases the review both see,

majority invites the reader to each is

inapposite here. judgment

While its remands the cause to court,

the trial the Austin

also found the evidence sufficient to sus- do,

tain the verdict. As I the Austin Court surely

will wonder what is the presumably and since it must parties

vite and afford time for the to brief question,

the Adams the Austin Court justified in believing

would be that to re- again the record prejudice prep- certainly

aration of a “in defense a decision” this

cause. premises altogether

In the it seems to me likely

more finally that this cause could be long

resolved the trial court before the

appellate system But, releases it. like a deck,”

“loose cannon on sus-

pends rules on its own motion in order to

grant discretionary review on its mo-

tion, summarily and then remands the

cause to the Appeals. Austin Court of

I dissent.

McCORMICK, J., joins. MODDEN, Appellant, Mack

Willie

The STATE of

No. 69442. Criminal

Dec.