concurring.
For reasons stated in my dissenting opinion in Davis v. State, 721 S.W.2d 857 (Tex.Cr.App.1986), I agree with Judge McCormick that our rules did not authorize the Court to grant review on its own motion. Moreover, unlike Davis v. State, supra, the Court did not expressly suspend the rules pursuant to Tex.R.App.Pro. 2(b).
Nevertheless, in my judgment, the petition warranted a grant in accordance with Id., Rule 202 in that in his Ground for Review appellant claimed former article 40.09 operated to deny him effective assistance of counsel and under his “Reason for Review” appellant made clear that he relied on Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 203 (1985). In Gollihar v. State, 701 S.W.2d 85 (Tex.App.—Amarillo 1986), both the statute and Evitts v. Lucey, supra, were considered by the Amarillo Court, and one justice dissented. See Tex.R.App.Pro. Rule 200(c)(2) and (5).
Furthermore, its opinion in this cause was relied on by the Amarillo Court in Ward v. State, 704 S.W.2d 903 (Tex.App.—Amarillo 1986), and we had already granted review in Ward when the instant PDR was taken up for consideration.
Accordingly, I join the judgment of the Court.