dissenting.
The new code of criminal procedure recognized, acknowledged and confirmed the authority and power of this Court to consider “any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.” 1 Article 40.09, § 13, V.A.C.C.P.
Early on the Court affirmed that it could review as “unassigned error” a claim not otherwise properly raised when “the facts relating to such claim are before us in the statement of facts approved by the trial judge,” Estrada v. State, 406 S.W.2d 448, 449 (Tex.Cr.App.1966), especially if deprivation of a constitutional right had been somehow asserted: McClellan v. State, 413 S.W.2d 391, 392 (Tex.Cr.App.1967) and Allison v. State, 423 S.W.2d 326, 327 (Tex.Cr.App.1968) — “The complaint in the record of the state’s demand of the appellant to produce his driver’s license or secondary evidence would be offered to make such proof will be considered as unassigned error. Art. 40.09, Sec. 13, C.C.P.” 2—Dodd v. State, 436 S.W.2d 149 (Tex.Cr.App.1969); Johnson v. State, 436 S.W.2d 906, 909 (Tex.Cr.App.1968); Heltzel v. State, 462 S.W.2d 289, 290 (Tex.Cr.App.1971); Stoddard v. State, 475 S.W.2d 744, 746 (Tex.Cr.App.1972); and Peoples v. State, 477 S.W.2d 889 (Tex.Cr. App.1972) are but a few of a host of similar decisions.
However, the Court also indicated that “a serious question of law” might be discussed under § 13, Bellah v. State, 415 S.W.2d 418, 421 (Tex.Cr.App.1967), and it soon demonstrated that a matter noted by it or an improperly presented contention may yet be considered though not of constitutional dimension. See Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972): reversal “required” “because the record shows that his court-appointed counsel was appointed on the day the trial commenced and the record fails to show that appellant and his court-appointed counsel waived the time provided by law to prepare for trial” under Article 26.04(b), V.A.C.C.P.3 Also in Green v. State, 490 *679S.W.2d 826 (Tex.Cr.App.1973), the Court decided the essentially statutory question of whether a peace officer of a municipality may make a valid arrest outside the limits of his bailiwick; Klueppel v. State, 505 S.W.2d 572 (Tex.Cr.App.1974) records a reversal by the Court on account of grossly improper jury argument by the prosecutor “in view of the gravity of the error,” which was reviewed in “the interest of justice,” id., at 575; “repeated improper questions of the prosecutor” about his juvenile record “denied appellant a fair trial” wrote Judge Odom for the Court in Ruth v. State, 522 S.W.2d 517, 519 (Tex.Cr.App.1975), and Judge Morrison concurred “because of the intolerable conduct of the prosecutor” and was willing to reverse for ineffective representation by counsel who failed to make proper objection to some sixty four such improper questions, ibid. Many more examples are collated by my dissenting opinion in Bell v. State, 620 S.W.2d 116, 127-128 (Tex.Cr.App.1980-1981). From all of which it appeared to me then — and does still:
“Thus, what is reviewable ‘in the interest of justice’ seems to depend on the particular collective judgment of the affected members of the Court at any given moment.. . ”4
Accordingly, the test is not, as Judge Odom now writes for the majority, “fundamental error that should be considered in the interest of justice,” P. 677 unless, of course, that is what the majority is holding today, for the first time ever.
To perpetuation of manifest injustice suffered by this appellant, I respectfully dissent.
. All emphasis is mine unless otherwise indicated.
. On the other hand, a contention not properly before the Court for review may still be examined in light of the record, but if it deals solely with matters not contained in any way in the record, review “in the interest of justice” is not “required,” e.g., Jones v. State, 478 S.W.2d 937, 940 (Tex.Cr.App.1972); or an examination of the record may cause the Court to conclude that “the ground of error does not require review ‘in the interest of justice,’ ” Smith v. State, 478 S.W.2d 947, 948 (Tex.Cr.App.1972).
.Similarly in Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975) Judge Odom wrote for a unanimous Court:
“The sole ground of error raised by appellant’s appointed attorney is without merit. Our reading of the record, however, reveals a violation of the mandatory provisions of Art. 26.04, V.A.C.C.P. In the interest of justice, we will consider such violation as unassigned error ... as we did in Crothers v. State....”
. As well as Judge Roberts, joining me in that dissent was Judge Odom who earlier in Voekel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973) had reviewed for the Court “in its entirety” a “voluminous record, consisting of over 2,000 pages” in order to discuss a contention (not otherwise properly presented for review) that the trial court erred “in allowing the State to introduce evidence ‘concerning extraneous offenses’ ...,” id., at 315.