Farrell v. State

864 S.W.2d 501, 1993 WL 191167

• Court: Court of Criminal Appeals of Texas
• Decided: June 9, 1993
• Docket: 1280-92
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by the trial judge of theft, Tex.Penal Code Ann. § 31.-03(e)(4)(B), and sentenced to confinement for forty-five years. Tex.Penal Code Ann. § 12.-42. The Court of Appeals found the evidence insufficient and entered a judgment of acquittal. Farrell v. State, 837 S.W.2d 395, 401 (Tex.App.—Dallas 1992). We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in failing to reform the judgment and find appellant guilty of the lesser offense of theft. We will affirm.

I.

Our review is limited to decisions of the courts of appeals. Tex.RApp.P. 200(a) provides:

The Court of Criminal Appeals, on its own motion, with or without a petition for discretionary review being filed by the appellant or the State, may review a decision of a court of appeals in a criminal case.¹

Tex.R.App.P. 202(a) provides:

The Court of Criminal Appeals may review a decision of a court of appeals in a criminal case upon petition by the appellant or the State.

Because our review is limited to decisions by the courts of appeals, we have held a party “may not expect this Court to consider a ground for review that does not implicate a determination by the court of appeals of a point of error presented to that court in orderly and timely fashion.” Tallant v. State, 742 S.W.2d 292, 294 (Tex.Cr.App.1987) (citing Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986)).

In order to ensure that we review only decisions of the courts of appeals, we insist that the parties, in an orderly and timely fashion, provide the courts of appeals with the first opportunity to resolve the various issues associated with the appeal. This orderly and timely presentation is accomplished by requiring the parties to raise their points of error and the responses thereto in their original briefs to the courts of appeals.

In Rochelle v. State, 791 S.W.2d 121 (Tex.Cr.App.1990), we declined to consider an argument raised before the court of appeals for the first time in a motion for rehearing:

We perceive the clear import of the purpose stated in [Tex.R.App.P.] Rule 74(p) to be that all points of error sought to be reviewed and all replies thereto are to be included in the original brief. Supplemented or amended briefs bringing new matters to the appellate court may be filed later, but only “as justice requires” or “in the interest of justice” and under reasonable terms imposed by the court ... The idea that a party may force a new issue on an appellate court after briefs have been filed is foreign to the rules, although constitutional restraints such as due process may so require in a given case.... Short of those situations, the decision whether to consider new matters raised in a supplemented or amended brief should be left to the sound discretion of the appellate court.

Id., 791 S.W.2d at 124. See also, Alvarado v. State, 818 S.W.2d 100 (Tex.App.—San Antonio 1991), and Wilson v. State, 811 S.W.2d 700, 702 (Tex.App.—Houston [14th Dist.] 1991) (“A point of error raised for the first time in a supplemental brief is not properly presented for appellate review.”).²

However, as with every general rule, there is an exception. In Riley v. State, 825 S.W.2d 699 (Tex.Cr.App.1992), we held the State had not waived review of an alleged defect in the defendant’s notice of appeal by raising the defect, for the first time, in a motion for rehearing, before the court of appeals. Id., 825 S.W.2d at 700. We held the issue was not waived because “[ajppellate courts are required to review challenges to their jurisdiction properly raised at any time before the issuance of its mandate.” Id,

II.

In the instant case, the State did not raise the reformation issue in the Court of Appeals;³ the issue is being raised for the first time in the State’s petition. Since the State did not raise the reformation issue before the Court of Appeals, the State’s ground for review does not implicate a decision by that Court. Tallant, supra. Furthermore, the ground for review does not challenge the jurisdiction of the Court of Appeals. Riley, supra. Therefore, we will not reach the merits of the State’s ground for review.

The judgment of the Court of Appeals is affirmed.

1 . Unless otherwise indicated, all emphasis is supplied.

2 . Although Rochelle is clear that, absent compelling circumstances, arguments raised for the first time in a motion for rehearing are not preserved for appellate review, we noted in Tallant that “there will be instances where [a motion for rehearing] is a helpful tool for focusing attention on an adverse determination of an issue [citations omitted], and if it draws a responsive opinion from the court so much the better, [citation omitted].” Tallant, 742 S.W.2d at 295.

3 . A reformation was not requested by the State in its original brief or in a motion for rehearing. See, n. 2, supra.