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.