dissenting.
Let me first point out, with emphasis, that John Allen Polk, appellant, has never to this day requested any court to appoint him counsel to assist him in the preparation or the filing of the petition for discretionary review that is before this Court for review. Nor has he asked for assistance in the preparation or filing of a brief in support of his petition. Of course, in light of Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982), such a request by appellant would have been a meaningless and useless act on his part.
I find the statement appellant makes in the pro se petition he has filed, that “Appellant would advise this Honorable Court that he is indigent without counsel,” represents nothing more than a plea that the members of this Court construe his pleading in such manner as to do substantial justice, and do so with a measure of tolerance. Thus, appellant’s plea is essentially a request that the members of this Court not impose on him the same high standards of the legal art which it might place on a pleading filed by a member of the Bar of this State. For further discussion on this point, see Ronald P. Sokol’s Federal Habe-as Corpus (1969 Edition).
And the members of this Court have honored appellant's request. This Court has liberally construed his petition and has unanimously decided to grant appellant’s petition for discretionary review in order to review his contention that the trial court erred in making a finding in the judgment that appellant used or exhibited a deadly weapon when he committed the offense of attempted murder.
The Court of Appeals, in affirming appellant’s conviction, overruled his contention.
This Court not only has voted to grant appellant’s petition for discretionary review, but now a majority votes to do more: It orders that this cause be abated and remanded to the trial court so that an attorney may be appointed to represent appellant in filing a brief in this Court on his behalf. I raise the question: In light of what this Court stated in Ayala v. State, supra, where is there legal authority for this Court to do what it is now doing?
In Ayala v. State, supra, this Court, inter alia, expressly held: “... the Fourteenth Amendment does not require that indigent appellants be provided with services of counsel in seeking discretionary review in this court.” (528). Surely, the preparation and filing of a brief falls within this principle of law, doesn’t it? In Ayala, this Court also expressly stated: “The United States Constitution does not impose a duty on appointed counsel to file a petition for discretionary review by [sic] this court. State law imposes no such duty, either. See V.A.C.C.P., Articles 26.04 and 26.05.” (528).
Thus, as long as Ayala v. State, supra, remains on the books, there will be a distinction, albeit I believe it is one without meaning, between the preparation and filing of a petition for discretionary review and the preparation and filing of a direct appeal.
The argument that the author of the majority opinion makes, as to why this Court has the authority to abate the cause and remand it to the trial court so that an attorney may be appointed to represent appellant in filing a brief in this Court on his behalf, is exactly the same argument that I made in the concurring and dissenting opinion I filed in Ayala v. State, supra. However, my opinion was rejected by this Court. And yet, the author of the majority opinion has the audacity to state the following: “We do not today question [the holding of Ayala v. State, supra].” In light of what the majority does, I must ask, how on earth can one not question the holding of *416Ayala v. State, supra, before ordering what the majority orders?
In all due respect to the author of the majority opinion, and the members of this Court who vote to approve it, as long as Ayala v. State, supra, remains on the books, “the Texas Legislature, as a matter of legislative choice, has [not] provided for the appointment of counsel once a petition for discretionary review has been granted by this Court.” I pause to add that although the Legislature of this State might have foreseen three different types of appeals in this State’s criminal appellate procedure, it most assuredly could not have foreseen this Court’s decision of Ayala v. State, supra.
But don’t rely upon the outcry I made in the concurring and dissenting opinion I filed in Ayala v. State, supra. Look at what Judge Clinton stated in the concurring opinion he filed in Ayala v. State, supra, when he stated the following, in referring to the situation where a State’s petition for discretionary review has been granted, after a court of appeals has reversed the defendant’s conviction: “Even now one feels pity for the indigent appellant whose appointed counsel achieved a reversal in the court of appeals and proudly retired from the appellate affray with his victory, leaving his erstwhile client to fend for himself when the State seeks discretionary review from this Court.” (528).
I find that Judge Clinton was absolutely correct when he made the following statement in the opinion he filed: “The majority opinion [in Ayala v. State, supra] is fraught with very high potential for much low mischief.” Ayala v. State, supra, should be expressly overruled, so that this Court can write on a clean slate.
Although what the majority does today is commendable, nevertheless, in light of Ayala v. State, supra, from a legal standpoint, the majority’s opinion has no legal foundation. Because of stare decisis, and what this Court stated and held in Ayala v. State, supra, I must respectfully dissent to the action of the majority in abating this cause and remanding it to the trial court so that an attorney might be appointed to represent appellant in filing a brief in this Court on his behalf. Again, however, I would vote to expressly overrule Ayala v. State, supra, but as noted the majority does not see fit to take this action. Thus, based upon stare decisis, I am compelled to dissent.