Thorpe v. State , 1993 Tex. Crim. App. LEXIS 162 ( 1993 )

CAMPBELL, Judge,

dissenting.

Appellant’s callous disregard for the Rules of Appellate Procedure is exceeded only by that of the majority. Appellant’s original petition for discretionary review filed with this Court was not in compliance with Tex. R.App.Pro. 202(d)(8) which states that when a petition for discretionary review is filed with this Court a copy of the opinion by the court of appeals “whose decision is sought to be reviewed shall be included.” (emphasis added). Appellant did not attach a copy of the Court of Appeals’ opinion, and subsequently his petition was refused.

Appellant thereafter filed a motion for rehearing in which he states that he “cannot deny the plain interpretation of [Rule 202(d)(8) ]” which requires that he submit a copy of the Court of Appeals’ opinion with his original petition for discretionary review. Appellant was apparently unaware of the rule. Appellant attached the requisite number of copies of the Court of Appeals’ opinion to his motion, and requested this Court review his original petition. Although appellant failed to certify that his motion was limited to “intervening circumstances of substantial and controlling effect” as required by Tex.RApp.P. 230(b), a majority of this Court has chosen to carve out an exception to the Rule for this appellant because his petition has merit. I dissent because the Rules of Appellate Procedure are mandatory, and this appellant should not be treated any differently than the thousands of other petitioners who are required to follow the same rules in order to get their petition before this Court for review. The Rules do not provide that compliance is mandatory, “unless your case has merit and then the Court of Criminal Appeals will consider it anyway.” However, today the majority of this Court has condoned this applicant’s repeated failure to comply with the rules.