*1 «83 case, thus, appellant analy- into in its own did suffer factors consideration egregious I distinguish harm. would sis. case from Chatman. this case there was judgment would vacate the of the
no reference to the what the trial court Appeals Court of and remand to the Court by “acting together meant with.” sufficiency analy- for a factual Appeals that, “Together” is a word in common sis. usage, many meanings. It can mean
spatial closeness, or temporal see Web- II College Dictionary
ster’s New
(1999), itor can mean “in union with.” (rev. Dictionary
Black’s Law 4th ed.
1968). A usage meaning note on the
“together explains with” that it means “in addition to.” There many are different meanings jury could take from the TAYLOR, Philip Ex Parte Daniel use of together. the word Appellant. application portion charge No. 652-00. with the “together definition of with” cluded say: acting “either alone or Texas, Court of Dickey, addition to Jerome or about En Banc. day the 4th April, did then and unlawfully, there intentionally or knowing- Feb. ly cause the death of Carlton Brown shooting Carlton deadly Brown with a
weapon ...” may may This not convey
the meaning party of a legal and the ele- jury
ments that the must find. It weighs
favor of the State that the portion abstract
of the charge that party liability describes
is directly above the application portion, majority
but the does not discuss this as a
factor. Almanza,
The majority cites but ad-
dresses of the instruc-
tion in the context of charge. the entire
The other factors that should be addressed evidence,
include the state of the contested
issues, counsel, argument of any other rel- provided
evant information by the record.
Almanza,
majority
reverses the of the Court of failing complete to conduct a
analysis and then fails to take all of the with, aides, -together usage: (singular)go¿ng in addition to. To- is attend the confer- with, gether subject principle applies sometimes follows the ence. The same to the use with, of a sentence expressions along or clause to introduce an of as, besides, such as as well circumstance, to, plus: additional element. In such a in addition Com- however, gov- necessary the number of the verb is mon sense as well as tact is only by subject job. erned and does not change. j College Dictionary Therefore it is correct to write The Webster's II New 158-59 (1999). (singular), together ambassador with two *2 Wice, Houston, appellant.
Brian W. Atty., Horn, Jeffrey L. Asst. State Van Lalk, DA, Austin, Asst. Margaret U. Paul, Bryan, Atty., Aus- Matthew State’s tin, for the State.
PER CURIAM. appeals reversed the After the court corpus re- district court’s denial habeas lief, Attorney both the State Attorney District of the 85th Judi- petitions cial filed for discretion- District to brief ary parties asked the review. We should question, whether both officials petitions file of behalf of permitted the State. hold controlling We the state.”4 These sections code permit only statutes for dis- it prosecuting “made clear the state cretionary attorney’s authority appear review be filed that a filed prosecut- dependent the state courts of is not on a *3 ing attorney is the petition request county from a attor- district or and that submissions from ney.” prosecuting attorney other officials The state will be received in may assistance of the state local “in prosecutor rep- “assist” the prosecuting petition. resenting requested, the state” when but may step prosecutor’s in without local Our holding is based on the Government request “represent to the state” when in Code, regulates which establishes and judgment necessary. it is In these office of state prosecuting attorney. The parts of the same sections that we are code duty establishes the authority construing, “assisting” it is clear that ais prosecuting the “state attorney repre- to cooperative enterprise, “representing while sent the state in all proceedings before the independent authority. the state” is an court criminal appeals].”1 [of Therefore, The code also we do not read authority establishes the county attorneys authority district and Government Code’s for a district in this attorney court: “A district to “assist” the county attorney may prosecuting state attorney authority assist “represent the state to prosecuting attorney in in an representing independent way the state state” that would before the court of criminal appeals.”2 face, compete supplant representation with or On its this stat- ute cannot easily prosecuting attorney. be the state read to authorize a county attorney district or file inde- Attorney The District rests his pendent petition for discretionary review authority arguments. to do so on three in this court. a petition, Such which would plenary authority One is that he has be an alternative to that of the state prose- represent general grant the State cuting attorney, naturally would not in article 2.01 of the Code of said to “assist” him. “represent Criminal Procedure Our reading of the statute is in all criminal cases in the district strengthened by comparison to other parts courts of in appeals his district and there of these sections of the code. In one of from.” He points to an earlier version of above, the sections that quoted 2.01, we have the bill that was enacted as article provides, the code “The prosecuting state given which would have the district attor attorney may county assist a district or a ney authority represent only the State attorney in representing the state before a in the appeals. signifi courts of He finds court appeals requested to do so give cant the amendment of the bill to him county attorney.”3 district or in all ap the State section, we, other provides, code “The peals. So do but we cannot attribute prosecuting attorney state may repre also to this amendment an intention to autho sent the state in stage attorney of a criminal rize a district independent to act case appeals ly state court of if he prosecuting attorney the state this it necessary considers for the interest of court.6 previous version of the bill 42.001(a). (Tex.Cr. § Aguirre 1. Tex. Gov’t Code App.1999). 42.005(b). § Id. (Section id. at 469 of Government Code Cf. requiring that "all from convictions 42.005(a). 3. Id. municipal in the court of record must be court, prosecuted appellate the court of 42.001(a). 4. Id. appeals, appeals by or the court of criminal gover- with the prosecuting have left the state nor. Some dissatisfaction attorney authority to 1931 act appointees with nor’s is reflected in this court. The to this gave appointment power amendment that that legislature bill was decision that required appointees task should not rest on the state years experience prac- at least five have prosecuting attorney alone. If we attrib- ticing prosecuting criminal law.8 The state legislature uted to the an intent for appointed by continues to be amendment make the of Court, final statement two-year for a term.9 repre- attorney’s authority the district From had 1923 to court, sent the State we would bringing no an action to this almost role ignore the relevant sections of the Gov- right no *4 appeal court. State had to Code, by were the ernment which enacted cases, of section by criminal virtue former legislature in same the same session. We judicial of consti 26 of the article the state ignore duty give would also have to our to only bring The a case tution. State would effect to all the statutes if a reasonable court for an ex application to this in an so. would construction will do And we writ, traordinary as one mandamus such of forget stat- special have to the maxim that The State’s almost exclu prohibition. general utes control over statutes. Read- of appellee. role was an The briefs sive as ing together, the hold that statutes we court, helpful appellee may an be to the they give authority to attorney they are an omis but not essential. Like in the represent the this court when State brief, from an conflicts be appellee’s sion attorney not to prosecuting state chooses appellee the tween two briefs for so, him only do but to assist the state when Judgments up will be of little moment. prosecuting attorney chooses to exercise they on are correct under held authority represent to the State. law, the the when any provision of even argument The district second by appel- has not been cited provision long practice is based on of both the the lee. prosecutors prosecuting local and the state of In the intermediate courts when attorney to in court. This file briefs this ap- of criminal appeals gained jurisdiction in practice put must be the context acquired other the peals capital, than State attorney history. From 1876 to the bringing more active role in cases to general represented the in the Court State It this Court Court. could (and predecessor, of Criminal its of an adverse decision in A act Appeals). legislative the Court of in court of For first time appeals. of a the prosecuting the office of state created appeal, and the conflicts omissions attorney to the the State before have ef- pleadings significant could State’s because, ac- At appeal. on the of an disposition fects act, cording emergency to the clause of statutory authority of the same time crowded the docket of the court was so attorney prose- and state the district attorney general one assistant adjusted statutory cuting attorney were not could assigned who was court amendment, above. explained as we argue and cases submit- properly brief when the Constitution Two ted to court.7 right the State the appointed by gover- give amended at first R.S., Leg., 42d ch. city May Act of attorney” usurp did not emergen- Laws Gen. 234. The Tex. attorney prosecuting of the state "importance ... of cy spoke clause court). the State attorney.” increasing qualifications of the amended, Id.., act, is now codified 2. The R.S., Leg., ch. 7. Act March Tex. Gov’t ch. Code 156, 1923 Laws Tex. Gen. 42.001(a). 9. See Tex. Gov't Code appeal, finally ney separate peti- attained the full should to file be allowed they status of an tions have different interests: appellant. Appeals peti- because case, he while only tions for wants win review the State Attorney has to look out have been in much smaller numbers than for all prosecutors the cases of all the those defendants.10 disagree. the state. The emphatically We Attorney not, The District does one, Texas has indivisible cannot, point considered decision prosecution: interest in a criminal to see allowing this Court since 1981 both the justice lawyers is done.15 Different attorney state prosecuting and the local doubtless views of have different how the prosecutor to seek review this Court. law shaped goal, should be achieve that may belatedly issue have been no but them give that does not different inter- ticed, important. but it is Ap basic prosecuting attorney ests. The state pellants “hybrid are not to have allowed local prosecutor may statewide view that a representation” appeal, which an ap have, explains and this doubtless pellant present and an can inde legislature’s give prose- choice the state pendent points appellate to an court.11 cuting attorney authority in primary equally important rule is for both this court and an intervene *5 parties. the But it appeals. courts of does not every In appeal, such decisions must be permit positions the State to take different made as appeal, whether to what to desig- in the same lawsuit. record,12 nate for inclusion in the clerk’s In this Prosecuting case the State Attor-
what designate reporter’s rec- ney authority has to repre- exercised his ord,13 (for what points to raise the appel- sent the State in proceeding filing lant), (for cross-points whether to raise the review, petition discretionary for and it is appellee), arguments what and authorities the petition State’s in this case. Dis- The present, error, whether to confess authority trict Attorney’s is to assist whether request argument,14 what Prosecuting Attorney. The points to argue, whether to seek rehearing, Court nor granted has neither refused re- whether to seek further review and on Attorney’s petition. view on the District grounds. what person one Some must The has been received decisions; make these there cannot be con- brief, amicus curiae for the flicting decisions. The District Attorney may assistance it give.16 point does not other court that is called on in any to entertain case conflict- KELLER, P.J., a dissenting delivered ing two attorneys repre- decisions made opinion in which KEASLER and senting party to a lawsuit. HOLCOMB, JJ„ joined. Attorney argues HERVEY, JJ.,
The District final JOHNSON and ly that he and Prosecuting participating. the State Attor-
10. example, In State Fiscal 12. Year See Pro. 34.5. Tex.R.App. 1,856 petitions, defendants filed while the State filed 203. See Office of Court Adminis- 13. See id. Rule 34.6. Report tration, Annual Texas Judicial (2000). —Fiscal Year 1999 79 System 14. See id. Rule 39.1. number of cases in which the State was a was, course, petitioning party less than primary duty prose- 15. “It shall be the of all petitions since in two some cases cuting attorneys, including any special prose- cutors, filed Prosecuting for the State the State convict, justice not to but to see that is Attorney prosecutor. and the local done.” Tex.Code Crim. Proc. art. 2.01. (Tex. 11. Patrick v. Cr.App.1995) (appellant’s supplemental brief Pro. Tex.R.App. Cf. review). presented nothing (5) P.J., subjects, consequences of a KELLER, opinion lar delivered (6) construction, dissenting particular to the of the Court which administrative order (7) KEASLER, statute, joined by and title construction HOLCOMB, emergency provi- JJ. (caption), preamble, and sion.5 attor-
The Court holds that the district
ney file a cannot Attorney review if the State 2.01 Article (S.P.A.) chooses file one. Because is question The first is whether there conferred believe that statutory authorization for district attor- attorney and the upon district S.P.A. neys represent the State discretion- separate petitions, file I dis- ary Texas of Criminal Pro- review. Code sent. cedure, 2.01 gives Article duty Statutory Standards “Each district appeals: Construction criminal shall all interpreted A must in accor- statute cases the district courts and in plain meaning its lan- dance with the therefrom, except in cases where he is guage ambiguous unless election, been, ad- employed plain meaning to absurd results leads added). key issue versely” (emphasis possibly could not If by “appeal.” is what statute means meaning” “plain intended.1 is a form of read quiry, phrases shall be “[w]ords statute, under Article 2.01 would then according context and construed *6 authorize a district And, “we usage.”2 rules of and grammar on discretion- the State before this Court every in a generally presume that word ary review. and purpose for statute has been used a word, clause, sen- phrase, that each and Here, one “appeal” the word could given reasonably tence should be effect the lan- possible meanings of two under possible.”3 (1) of direct review guage the statute: (2) resort, or appellate court of first the ambigu- language is statutory When the aby of decision review a lower court’s the or results that ous leads absurd definition would higher court. first possibly have intend- could not to direct “appeals” limit criminal cases ed, sources may we resort to extratextual appeals of court review cases the of in- interpretation.4 conducting In of to direct penalty non-death situations and consider, among mat- quiry, may other we penalty review of death cases (1) attained, object sought the ters: in- The second definition would (2) Court. which the stat- the circumstances under (3) would also clude those situations but enacted, history, legislative ute was the (4) clude review before statutory provi- common law or former sions, of or simi- Court and writs certiorari including laws on the same State, 311.023; State, (Tex. v. Boykin 5.Tex. Code Brown v. 818 S.W.2d Gov't 1997). (Tex.Crim.App. Crim.App.1991). This 943 S.W.2d part provision Act,” of the “Code Construction is 311.011(a); v. Tex. Gov't.Code Sanchez applies Code Criminal of which (Tex.Crim.App. 995 S.W.2d Procedure, extent has been at least to the it 1999). by the or subse reenacted amended or quent legislature. Tex. Gov’t Code (Tex. v. 3. Whitelaw 311.002(2); § 462, v.. Postell Crim.App.2000). 1985). (Tex.Crim.App. Boykin, 818 S.W.2d at Supreme cept Judge Dally agreed petition States Court.6 that a United Because ambiguous, of is the statute “ap- writ of certiorari constituted an required resort extratextual sources is opinion peal.” The lead observed: interpretation. expressed in plurality dictum White 1, 1981, September Before the Court of (Tex.Cr. State, supra, S.W.2d 366 [543 Appeals Criminal was the court to concluded, App.1976)] correctly re- appeals in hear criminal cases.7 Under spondent dispute, that a does case Texas Constitution and Article 44.01 of case, such is a as this criminal Procedure, of the Code Criminal case, that review of the whether denom- expressly right was denied to appeal error, a inated an writ of a writ appeal, Hill, criminal matters.8 In Faultier v. we certiorari, name, of still other is petition confronted the issue of whether an appeal.14 of for writ certiorari to the United States Supreme Court an “appeal” constituted In of people Texas and of purpose the Texas Constitutional Legislature comprehensively ap- revised provision denying right State to pellate jurisdiction involving criminal appeal.9 This Court had reversed Fauld- cases. with accordance constitutional conviction, er’s and the filed a motion amendments, courts of civil appeals stay proceedings might so that it seek appeals,” renamed the “courts of by way review certiorari the United jurisdiction appellate first-level non- over Supreme States Court.10 defendant The. penalty death criminal cases was trans- sought a writ of prohibition from this ferred from the Court Criminal prevent Court from seeking appeals, the courts of and the such review.11 The defendant contended given discretionary State was barred the Texas jurisdiction over the decisions Constitution from filing for writ At courts in criminal cases.15 of certiorari because such time, about the same “appeal.”12 constitute an While the case permit amended decision, Article 44.01 produced a fractured with a plu- rality opinion to obtain review in a concurring and several round- *7 dissenting opinions, of the judges all ex- about fashion: Support
6. for the Id. latter definition can be 12. 13, in Short v. 14 & found n. 2 (Tex.Crim.App.l996)(citing 14 Black's (plurality opinion)(State 13. Id. at 514 could Dictionary holding Law definition and that a petition nevertheless file the because the Tex- petition discretionary for review constitutes provision apply out- Constitutional did not "appeal” purpose an for the of former Rule of system); side the state Id at 516 & 1 516 n. 60(b), Appellate regarding Procedure the ef- (Roberts, concurring dissenting); at J. Id. escape custody of an pending fect from on a (Onion, dissenting); 518-519 (Clinton, 525 P.J. Id. at appeal). dissenting). at J. Contrast with Id. (Dally, concurring) (Dally, 516 J. & 526-528 Const., 5, (1980). § 7. Tex. Art. 5 concurring rehearing). J. on motion for Const., 5, (1980)("The § 8. Tex. Art. State at Id. appeal right shall have no of in criminal cases.”); Proc., Tex.Code Art. Crim. 44.01 Const., 5, 6,§ 15. Texas Article 1980 amend- (1980)("The right ap- State no to shall have 1979, p. proposed by Leg., ment Acts 66th actions”). peal in criminal 36, 5, 1, Sept. S.J.R. No. effective (renaming appellate the intermediate (Tex.Crim.App.1980). 9. conferring jurisdiction); courts and criminal Const., 5,§ Texas Article amendment Id. at 513. proposed by Leg., p. Acts Sept. Id. S.J.R. No. effective petitions 2.01 right peals” The have no of under Article State shall included However, discretionary review. in stat- criminal actions. to prevent
ute shall not be construed the legislative Other evidence of intent can petitioning from the Court of State the prior be found in a draft of amendment review Criminal a decision of original Article version 2.01. The case, in a appeals court of criminal on granted amendment have district would its motion.16 own attorneys authority to “in therefrom appeals Courts language appears “on its own motion” added). Appeals” (emphasis The em- recognition to be Texas Consti- phasized language was deleted from the invoking tution from prevented the State final the bill. This deletion version of jurisdiction discretionary our review with a Legislature contemplated indicates petition.17 Legislature presum- was ap- that a district ably prior holding our aware of caselaw beyond proceedings be- peal extend petitions that for writ of certiorari were One appeals. might fore the courts of “appeals” readily it could have contend reference courts of that ferred that a re- that appeals deleted so statute was view, much like which was writ appeals death would embrace direct certiorari, would likewise considered cases, handled penalty are which Although the 1981 constitution- appeal. Court. But the could changes al produced amendments dramatic included reference the statute to death process, appellate criminal no penalty appeals, along with reference change pro- made the constitutional was .in appeals, truly to courts of that was their from barring prosecuting vision especially light Legisla- intent — ture’s tacit con- Because of constitutional appeal. Article recognition 44.01 that straints, then, could a form of appeal. review is suggest to this authorize addition, Daily’s testimony In in a Judge something on our that we hearing committee indicates to a response own defendant’s motion. designed 2.01 to Article was amendment claim new in Article attorneys to their permit district follow Constitution, 44.01 the Texas we violated Appeals: cases the Court Legislature recognized the stated that “the provision Section 98 adds to 2.01 that V, prohibition imposed Article Section will it clear sought to make that discre- from criminal cases review, tionary granted, when on its unknown probably their district. This is (this Court’s) own motion.”18 no many there been people but *8 statutory district provision for Article Article 2.01 and 44.01 done, is, that fol- doing they what have If Legisla- in the same bill.19 amended lowing cases on to Court of their appears it contemplated, ture as to have this make And does Appeals. Criminal done, under Article 44.01 “appeal” that provision.20 such a discretionary re- petition included view, this as passage to use logical it to conclude that would hesitate seems proposition unqualified support for the contemplated “ap- that also juris- Id. (changes Appeals’ 18. to Court of Criminal diction); 2.01, 1981, by Acts 67th 19. Article amended 801, 291, 98, 265, Procedure, Leg., p. S.B. ch. effective Article 16. of Criminal Texas Code 1, 1981, 265, (1981); Sept. 1981. Leg., S.B. 44.01 Acts 291, 123, 1, 812, p. Sept. effective 1981. ch. 265, Hearing, House 20. SB Subcommittee Committee, 6, 116, (Tex. April Jurisprudence 17. 661 S.W.2d 118 Todd v. 1981. Crim.App.1983).
891 Tex- is covered discretionary an review discretionary constitutes review This Legislature may Appellate Procedure.25 appeal (although as Rules believed) tak- in the Judge Dally discretionary had review so because reference to that discretion- position appeal en the elsewhere of the State’s stat- current version appeal.21 not an ary is, version, recog- review does constitute past a tacit ute minority on this Judge Dally was a form discretionary review is nition that in con- point, explained as will be further subsequently enacted appeal. While my the S.P.A. nection with discussion of weight in carry a lot of statutes do Judge Daily’s committee statute. But construction, they case do statutory Article does indicate that statement consistently show designed legitimize 2.01 amendment discretionary as a form of treated a tradition regarding district above, I Considering all of the appeal. That tradi- representation of the State. gives district that Article 2.01 conclude representation tion consisted of dual attorneys the attorney and the the district discretionary review. S.P.A., both filed briefs which And on at least two occasions Court.22 Chapter 42 changes, attor- before the 1981 the district ney and the advanced inconsistent S.P.A. that Article 2.01 Having established positions.23 gives attorneys the to file review, discretionary I must petitions for
Other, subsequently
statutory
enacted
next
whether another statute
determine
provisions reinforce the idea that discre-
attorney of that authori-
deprives a district
tionary
“appeal.”
review constitutes
ty
petition.
if
files a
Before
the S.P.A.
Procedure,
Texas Code of Criminal
Article
1981, former Article 1811 of the Texas
1.051 refers to
review as
for a
Prose-
provided
Statutes
Civil
appeal:
provides
form of
the statute
cuting Attorney
represent the State be-
appointed
in “an
counsel should be
The Court of Criminal
fore this Court:
to the Court of Criminal
attorney to
appoint
repre-
shall
directly from the trial court
appeal is made
proceedings
in all
sent the State
or if a
review has
Court,
styled
to be
“State
said
granted.”24
been
The current version
State,”
bill
44.01,
Attorney....”26
the same
“Appeal by
Article
titled
44.01,
Leg-
amending
Articles 2.01 and
provision
cludes a
that a state’s
413; Rice,
Faultier,
526-528;
Faugh,
51
District and to be vide assistance State true. Attorney in representing the be- State fact, sug- the structure of the statute fore the Appeals. Court of Criminal gests Regarding different answer. Prosecuting Attorney may The State representation S.P.A.’s of the provide assistance to district county courts appeals, Chapter contains two of attorneys in representing the State be- separate permits clauses: one the S.P.A. fore the Courts of when re- upon request to “assist” while the other quested to do so the district or allows him to “represent State” he county attorney. The State Prosecut- decides that the interests of the State so ing Attorney may represent also require. That difference in wording leads stage of a criminal case possible to two about conclusions the latter when, the Courts of (1) clause: can S.P.A. choose judgment, interests the State representation take over the State’s require.27 so (2) appeal, or can that he act as an inde-
Article 1811 was later codified in various pendent representative of the State before parts Chapter 42 of the Texas Govern- the Court of Appeals. interpre- The first ment Code.28 tation creates difficulties. The statute Nothing in language of this statute provides representation that the S.P.A.’s deprives district attorneys authority may occur any stage “in of a criminal case statute, this Court. The its before the of Appeals” (emphasis wording, is an affirmative grant of authori- added). So, obligated repre- he is not ty to the S.P.A. to represent the State throughout sent the proceedings before this Court. The statute also con- but in” in “jump could the middle of the tains an grant affirmative appellate process “jump out” before attorneys provide district assistance to drive-by repre- is finished. Such grants S.P.A. Those affirmative of au- sentation disruptive could be if the S.P.A. thority are not inconsistent with an affir- suddenly jumps in to take over the case grant mative to district attor- out, jumps leaving and then later the dis- neys the State in all appellate trict to deal with the aftermath. words, proceedings. In other lan- conclusion, logical The more upon based guage is consistent with attorneys both language provision, is that the having authority acts, will, independent S.P.A. at as an rep- before this Court. resentative of the State before the court of significant The Court finds that the Gov- appeals. ernment Code authorizes a district attor- If the S.P.A. has both “assist” func-
ney to “assist” the S.P.A. and concludes “independent representation” tion and an independent that an petition could not nat- level, function at urally the court of be said to “assist.” That conclusion why has to wonder assumes either that a the same functions district authority to would not be mirrored petition the Court is derived for district attor- solely neys from the him provision permitting Although Chapter before this Court. assist the S.P.A. or that the contains “assist” clause no could be Chapter terpreted giving somehow overrides the Stat., (1981); (third sentence); 42.005(a) (first sentence), 27. Tex. Civ. Art. 1811 Acts 291, 42.005(b) (second sentence). Leg., p. S.B. Ch. Sept. passage effective 1981. This *10 42.001(a) subsequently §§ codified at 28. See citations above.
893
function,
in fact
judicial
it
construction was
representation
independent
meets,
Legislature
were
af-
does not need to: district
correct. “When
2.01.
given
judicially
that function Article
particular
a
statute has been
ter
statute,
construed,
changing that
without
Judge Dally,
in a law
observe that
presume
intended
we
article,
journal
interpreted
provi-
these
to be
construction should continue
same
give
primary responsibility
sions
judicial
A
con-
to that statute.”32
applied
representing the
to the district attor-
judicial
form of a
struction can take the
and to the
ney
at the court of
level
judicial-
case or of a
opinion
particular
a
our
But this inter-
S.P.A. before
Court.29
rule.33 A custom can also
ly-promulgated
appears
upon
to be based
pretation
early,
if it is
discretionary
judicial
does not be a
construction
review
position
from
As dis-
position
pervasive.34
constitute an
and
longstanding,
—a
repeats
2,
Faulder
that he
elsewhere
recognized
part
cussed
journal
If
article.30
law
by the district
independent filing of briefs
agreed
position, they
with this
had
early
as
as 1933
and the S.P.A.
given
unqualified
taking
positions
of inconsistent
as
and the
discretionary
to file
And,
early
practices
as
those
1932.
imposing
instead of
the roundabout meth-
occurring at
the time of the 1981
still
Article
placed
od
the 1981 revisions to
After the 1981 amendments
amendments.
And,
majority
of the Court
44.01.
to be a consistent and
there continued
rejected
position
Faulder and Todd
independent repre-
pervasive practice
well.31
before this Court
sentation
S.P.A.,
attorney and the
both the district
recognized
longstand-
also
We have
filing
petitions
judicial
Legisla-
including
separate
ing
construction without
Legisla-
disapproval
tive
adds force to the claim for
review.35
9,
Dally
Mary’s
(Tex.Crim.App.1999);
v.
Brockway,
29.
13 St.
L.J. at
9-10
Martinez
758,
State,
(Tex.Crim.App.1999);
4 S.W.3d
760
238.
State,
918, 919
burn
v.
3 S.W.3d
Mil
Dally
Brockway,
Mary's
State,
30.
13 St.
L.J. at
1999);
(Tex.Crim.App.
Fields v.
1
687,
(Tex.Crim.App.1999);
S.W.3d
688
ki
Per
State,
116,
(Tex.Crim.
v.
993 S.W.2d
116
ns
part
31. See
discussion
818,
Munoz,
App.1999);
S.W.2d
State v.
991
State,
(Tex.Crim.App.1999); Weatherred v.
821
516,
Hardy,
32. State v.
963 S.W.2d
523
323,
(Tex.Crim.App.
975 S.W.2d
323-324
State,
(Tex.Crim.App. 1997)(quoting Marin v.
720,
1998);
State,
721
v.
925 S.W.2d
Marin
267,
(Tex.Crim.App.
891 S.W.2d
271-272
State,
(Tex.Crim.App.1996); Ray v.
919
1994)).
125,
2
129 & 129
n.
S.W.2d
dissenting);
1996)(Overstreet,
(Tex.Crim.App.
J.
Hardy,
ture has had time to amend the prevailing practice
statutes involved representation
of dual were inconsistent intent. legislative
with respectfully dissent. State, 1989); 1987); Perry v. v. Smith (Tex.Crim.App. (Tex.Crim.App. 583 n. 1 State, lm (Tex.Crim.App. (Tex.Crim.App.1987); S.W.2d 703 S.W.2d Fu 1986); (Tex.Crim. er v. Moreno 1983). McMillan v. App.1987); (Tex.Crim.App.