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holding that a discretionary review petition should specifically address the decision of the court of appeals
Summary of this case from Beltran v. StateOpinion
No. 989-85.
July 9, 1986.
Appeal from 196th Judicial District Court, Hunt County, Paul Banner, J.
Richard D. Williams, Cornel Walker (court appointed), Greenville, for appellant.
F. Duncan Thomas, Dist. Atty., Greenville, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
A jury convicted appellant of burglary with intent to commit sexual assault and assessed his punishment at 60 years confinement in the Texas Department of Corrections. On appeal the Fort Worth Court of Appeals affirmed the conviction in an unpublished opinion. Degrate v. State, No. 02-84-099 (Tex.App.-Fort Worth 1985).
Appellant presents twelve grounds for review, which are an exact duplication of the grounds of error presented to the court of appeals. However, appellant's petition fails to present any reasons why this Court should review the opinion of the court of appeals. Tex.Cr.App.R. 304(d) provides that:
A petition for discretionary review shall be as brief as possible. It shall be addressed to "the Court of Criminal Appeals of Texas" and shall state the name of the party or parties applying for review. The petition shall [emphasis added] include the following:
. . . . .
(5) Reasons for Review. A direct and concise argument, with supporting authorities, amplifying the reasons relied on for the granting of review. [emphasis added] See Rule 302(c). The opinions of the court of appeals will be considered with the petition, and statements therein, if accepted by counsel as correct, need not be repeated.
Tex.Cr.App.R. 302(c) sets out six reasons indicating the character of reasons to be considered in deciding whether to grant review. Although these reasons are not exhaustive, nothing in appellant's petition presents any reasons of similar character. The purpose of the petition for discretionary review is to present cogent, concise reasons why this Court should exercise its discretionary jurisdiction. These reasons are reflected by those set out in Rule 302(c), supra. The importance of the case to the jurisprudence of the State must, therefore, be made apparent in the petition for review. The assertion that the court of appeals was in error as to some point of law, standing alone, may be insufficient to require further review.
Tex.Cr.App.R. 302(c) provides:
In determining whether to grant or deny discretionary review, the following, while neither controlling nor fully measuring the Court of Criminal Appeals' discretion, indicates the character of reasons that will be considered:
(1) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter;
(2) Where a court of appeals has decided an important question of state or federal law which has not been, but should be, settled by the Court of Criminal Appeals;
(3) Where a court of appeals has decided an important question of state or federal law in conflict with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States;
(4) Where a court of appeals has declared unconstitutional, or appears to have misconstrued, a statute, rule, regulation, or ordinance;
(5) Where the justices of the court of appeals have disagreed upon a material question of law necessary to its decision; and
(6) Where a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision.
To this end, the portion of the petition designated "Reasons for Review" should specifically address the court of appeals opinion and its effect on our jurisprudence. This presentation should not go into a detailed analysis, but should briefly set out relevant cases and statutes, and note any alleged misstatements or omission of relevant facts. A discussion of principles of law, without reference to the holding of the court of appeals, will usually be insufficient to persuade this Court to exercise its discretionary jurisdiction.
Appellant has presented no reasons as to why this Court should review the opinion of the court of appeals. Therefore, appellant's petition for discretionary review is refused. See Pumphrey v. State, 689 S.W.2d 466 (Tex.Cr.App. 1985); Delgado v. State, 687 S.W.2d 769 (Tex.Cr.App. 1985).
Tex.Cr.App.R. 304(h) provides that:
The Court may dispense with notice and may grant or refuse the petition immediately upon the filing of the petition where, in its opinion, the circumstances require it.
Any petition which fails to set forth adequate reasons for this Court to exercise its discretion to review a court of appeals' opinion is subject to such a summary refusal.