The appellant was convicted of the offense of burglary of a habitation. The jury assessed punishment at confinement for twenty years in the Texas Department of Corrections. On appeal a panel of the Court of Aрpeals for the Fifth Supreme Judicial District of Texas at Dallas,
On the state’s motion for rehearing thе state argued that the Court of Appeals had no authority to consider а brief not in strict compliance with the mandatory provisions of the Texas Code of Criminal Procedure, especially in light of the amendment of Art. 40.09(13), V.A.C.C.P.
On the state’s second motion for rehearing, рursuant to Rule 208, Tex.Cr.App.R. (1981), the Court of Appeals withdrew its previous opinions and affirmed the conviction, stating that the evidence adduced at trial was suffiсient to support the conviction. The court, however, reaffirmed its decision that its power to review unassigned error was not affected by the amendment to Art. 40.09(13), supra, and concluded that it therefore had the power to review questions of sufficiency of the evidence, sua sponte.
Following the delivery of the Court оf Appeals final opinion, the appellant filed a petition for disсretionary review in this Court. The state then filed a petition for discretionary rеview, pursuant to Rule 304(c), Tex.Cr.App.R. (1981). We refused the appellant’s petition and granted the state’s petition. The petition presents to this Court the issue of whether the Court of Appeals indeed has the inherent power to
While the opinion of the Court of Appeals on the state’s second motion for reheаring does contain language asserting that court’s authority to review sua spоnte the sufficiency of the evidence, we do not believe that this languagе, nor this determination, was necessary to the ultimate decision in the casе and therefore consider it to be obiter dicta. The Court of Appeals final dispositiоn of the case did not rest upon a determination of its inherent reviewing pоwer. Under the circumstances we are not compelled to rule on thе dicta espoused by the Court of Appeals. Because of our refusаl to grant the appellant’s petition for discretionary review, the state’s petition is in the nature of a certified question or a request for an advisory opinion. See Trevino v. State (Tex.Cr.App.1983) (Ancillary to 13-82-037, delivered 4/20/83.) The issue is not propеrly before us.
The state’s petition for discretionary review is dismissed.
Notes
. Art. 40.09(13), V.A.C.C.P. (1965) reads:
“Upon refusal of the court to grant defendant a new trial, the clerk shall thereupon promptly transmit the record and briefs to the Court of Criminal Apрeals, in which court all grounds of error and arguments in support thereof urged in dеfendant’s behalf in the trial court shall be reviewed, as well as any unassigned error which in the opinion of the Court of Criminal Appeals shall be reviewed in the interest of justice." (Emphasis added.)
Subdivision 13 was amended by Acts 1981, 67th Leg. p. 804, ch. 291. Sec. 108. The subdivision now relatеs to extensions of time only.
. This is not a situation where the Court of Appeals hаs sua sponte reversed a conviction for insufficient evidence. Were the statе’s posture that of an “aggrieved” party, the question presented would prоperly be before us. Because the state has prevailed in the court below this petition should not be granted and the issue should not be reviewed at this time.