IN THE TEXAS COURT OF CRIMINAL APPEALS
by
Judge Sharon Keller
One hundred and twenty years ago, the Court of Criminal
Appeals was created as the Court of Appeals, established
for the purpose of assisting the Supreme Court with
appeals from criminal cases and from civil cases tried
by county courts. In 1891 the name of the court was
changed to the Court of Criminal Appeals, and its jurisdiction
was limited to appellate jurisdiction over criminal
cases.
Back then the Court was composed of only three judges
who, if one can imagine, were able to handle every
appeal from every criminal conviction in the entire
state. As the population of Texas grew, the Court
appointed commissioners to assist in the ever-increasing
caseload. During the past thirty years, the Constitution
has been amended twice to increase the number of judges
on the Court -- to five judges in 1966, and in 1979
to nine judges.
Then in 1981 a truly profound change occurred. The
Courts of Appeals were given intermediate appellate
jurisdiction over most criminal cases. And thank goodness
they were.
I have been told that the Court of Criminal Appeals
is the busiest appellate court in the nation; I do
not doubt it. The number of matters that come to the
Court is daunting.
During the fiscal year ending in August of 1995, for
example, the Court disposed of 4,550 applications for
writ of habeas corpus. That was up over 33% from 1994.
Cases in which the death penalty has been imposed still
come on direct appeal to the Court, bypassing the Courts
of Appeals. During fiscal year 1995, the number of
death penalty appeals, direct appeals, granted habeas
corpus writs, and extraordinary writs came to 232.
In that same year, the Court disposed of over 1,450
petitions for discretionary review. Of that number,
112 petitions, or 7.7% of petitions filed, were granted.
From all appearances, the number of PDRs filed this
year will be far higher than last. This brings me
to the reason for this article.
Every single petition for discretionary review that
is filed in this Court comes to my desk. In the time
that I have been on the Court I have seen, by my calculation,
between two and three thousand PDRs, PDR briefs, and
PDR replies. Anyone who goes to the trouble of filing
a PDR ought to understand that while the substance
of a petition is critical, matters of form should not
be ignored. My comments are, for the most part, meant
to address form. On the basis of what I have read
in these thousands of petitions, I offer the following
few suggestions.
Follow the Rules. Read the Rules of Appellate Procedure;
they tell you what you need to do. Then do what they
say. File the correct number of copies of your petition.
Attach a copy of any opinions from the Court of Appeals.
If the Court of Appeals opinion is printed on the
front and back of each page, make sure that you copy
the front and back of each page.
There is a difference between "grounds (or questions)
for review" and "reasons for review."
Rule 202 requires a petition to include both.
Be brief. Rule 202(d) says that a petition for discretionary
review shall be as brief as possible. Follow the Rule.
Obviously, "as brief as possible" will mean
different things in different cases, but the Rule is
there for a reason.
Remember, you do not have to put everything in your
petition. If the petition is granted you will get
to file a brief on the merits.
Get to the point. Say plainly what you mean to say,
both in your formulation of grounds for review and
in your argument. While I do not presume to speak
for the rest of the Court, my advice is to avoid saying
more than you need to say. "What you need to
say" is a fluid concept, and perhaps not easily
determined; you do not want to say too little either.
All I can say is try.
What are your issues? Again, I do not speak for my
brethren, but when I read a PDR, I want to know first
off what issues are being presented. I go straight
to the subject index where, according to Rule 202(d)(1),
there should be an abbreviated rendition of the grounds
for review.
Remember that a PDR is not a direct appeal. The Court
of Criminal Appeals reviews decisions of the Court
of Appeals. Your argument in a petition for discretionary
review is not with the trial court; it is with the
Court of Appeals. Your petition should address your
disagreement with the action and analysis of the Court
of Appeals rather than your disagreement with the action
of the trial court.
Replying to a petition. When you are deciding whether
to respond to a petition filed by your opponent, be
aware that the Court accepts reply letters. I do not
necessarily recommend them; I just note that they are
an option.
Amendment and supplementation. Do not forget Rule
202(j), which addresses the amendment and supplementation
of petitions and replies.
Brief on the merits. If your petition is granted,
you are required to file a brief on the merits. Hunter
v. State, 1995 WL 653533 (Tex. Crim. App., delivered
November 8, 1995); Rule 203.
Oral argument. If your petition (or your opponent's
petition) is granted, you may be allowed to argue your
case orally. When you come to the Court to argue,
remember that you are not in front of a jury. Please:
do not pace around the podium, do not raise your voice,
and do not refer to the Court as "you guys."
My personal opinion is that flippancy is out of place
and jokes are almost always inappropriate.
My final suggestion is the same as my initial suggestion:
read the Rules and follow them. Complying with the
Rules will not guarantee that your petition will be
granted, but I know of no easier way to increase the
likelihood.
1. My statistics and my outline of the history of the
Court come from the Texas Judicial System Annual Report
for Fiscal Year 1995, prepared by the Office of Court
Administration. I gratefully acknowledge the OCA's
contribution to this article.
2 Judge, Texas Court of Criminal Appeals. B.A.
1975, Rice University; J.D. 1978, S.M.U. School of
Law.