dissenting.
Of all appellate courts in the State of Texas, only this Court has jurisdiction, power and authority to promulgate general rules governing post trial, appellate and review procedure in criminal law matters. Article 44.33(a), V.A.C.C.P., Article 44.-45(c), id. and House Bill 13, Acts 1985, 69th Leg., Ch. 685, 12 Vernon’s Texas Session Law Service 1985, 5136. As pertinent here this Court has promulgated a set of Rules of Post Trial and Appellate Procedure in Criminal Cases. Cited as Tex.Cr.App. Rule —, those rules govern, inter alia, procedures in criminal cases in the discretionary review of a decision of a court of appeals by this Court. Tex.Cr.App. Rule 3.
Of all appellate courts in the State of Texas, this Court is obliged to adhere to rules it promulgates unless suspended pursuant to Tex.Cr.App. Rule 4. That rule provides, however, it “shall not be construed to allow any court to suspend the requirements or provisions of the Code of Criminal Procedure.’’ Id.1 Today though, a majority would have the Court violate its own rules and the Code of Criminal Procedure.
On direct appeal appellant challenged sufficiency of evidence to support the judgment of conviction. Represented by the local district attorney, the State resisted his challenge on the facts of the matter; it did not then claim that unobjected hearsay has probative value.
The Fort Worth Court of Appeals applied the “well settled [rule] in Texas that hearsay has no probative value, even if admitted without objection, and will never form the basis of a judgment because it is wholly incompetent.” Disregarding testimony it found to be hearsay, the Fort Worth Court of Appeals concluded remaining evidence is insufficient and, accordingly, reversed the conviction and ordered that a judgment of *252acquittal be entered. The State did not file a motion for rehearing.
In his petition for discretionary review the local district attorney presented but one ground for review, viz:
“The judgment must be reversed and remanded for trial error, not reversed and rendered for insufficient evidence.”
The State Prosecuting Attorney independently filed his own petition for discretionary review.2 It presents three questions for review, the last of which asks, “Is unobjected to hearsay devoid of probative value?”3
Article 44.45, § (b)(1), V.A.C.C.P. provides: “The state or a defendant in a case may petition the Court of Criminal Appeals for review of the decision of a court of appeals in that case.” Because the Fort Worth Court of Appeals was never called on to consider the third question for review the State Prosecuting Attorney poses, that court did not render a “decision” for this Court to “review” on that question. “The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in orderly fashion and determined by the appropriate Court of Appeals.” Lambrecht v. State, 681 S.W.2d 614, 616 (Tex.Cr.App.1984).
The statute and our rule recognize that this Court may grant review on its own motion. Article 44.45(a), V.A.C.C.P., and Tex.Cr.App. Rule 803. However, we did not do that in this case.
In sum, although the parties to the litigation never joined issue in the trial court or on direct appeal, and contrary to every statute and rule on the subject, a majority wills this Court “to reach out” and to strike down a “well settled” rule of law that has served the jurisprudence of this State practically from the beginning. Belverman v. The State, 16 Tex. 130 (1856).4
Furthermore, concepts of due process and due course of law remain viable in an appellate process and are implemented by all sorts of procedural rules and practice. For example, when we grant a petition for discretionary review the petitioning party is to file a brief, after which the opposing party shall do so. In support of their respective positions each is entitled to present oral argument. Tex.Cr.App. Rules 306 and 307. But in the instant cause since we initially refused both petitions for discretionary review there was no occasion for either party to brief or argue anything.
Then the State Prosecuting Attorney filed his motion for rehearing mainly contending this Court erred in failing to grant review “on the question dealing with the validity of that portion of the Court of Appeals’ judgment which ordered that the appellant be acquitted.” Only incidentally did the motion reurge that “aside from the hearsay in question” the evidence is insufficient and that “unobjected to hearsay has probative value” — merely making reference to its earlier petition for discretionary review. See n. 3, ante. The prayer sought particular actions by the Court, viz:
“Wherefore, the State prays that this motion for rehearing be granted; that the State’s Petitions for Discretionary Review be granted; that the case be set for submission to the Court of Criminal Appeals on oral argument; that after submission, this Court reverse the decision of the Court of Appeals and affirm the judgment of the trial court.”
*253A majority granted the motion for rehearing without identifying any ground for doing so.5 It did not grant either petition for discretionary review and thus bypassed the mandate of Tex.Cr.App. Rule 306 that briefs be filed and of Rule 307 that parties may make oral argument. The majority did not invite oral argument. The cause was submitted on rehearing sans briefs and oral argument.
The majority, therefore, causes the Court to flout its own orderly procedure in order to pronounce a significant change in the hearsay rule of evidence. The majority can make up its own rules as it goes along simply because it outnumbers the minority. It may well rue the day.
I dissent.
. All emphasis is mine throughout unless otherwise indicated.
. Though the majority may not have noticed since it does not decide the point, the petition appears to be untimely filed.
. The “argument” on that matter consists of fifteen lines in two short paragraphs: It notices Texas Rules of Evidence, Rule 802; it points out that “only 1½ jurisdictions” in this country “cling to said absurd notion;" it quotes from the dissenting opinion of Judge Odom in Frazier v. State, 600 S.W.2d 271, 273 (Tex.Cr.App.1979); it cites condemnations by Wigmore and McCormick and Ray.
."But mere hearsay is not only not the best, nor even secondary evidence; it is no evidence.” Id., at 132. Accord: Ex parte Thrash, 167 Tex. Cr.R. 409, 320 S.W.2d 357, 359 (1959). As stated in Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr. App.1975), "[H]earsay evidence has no probative value.” Id., at 580.
. If the majority really believes it granted the State Prosecuting Attorney “leave to file a motion for rehearing" it is mistaken, for there is none nor is one required. Tex.Cr.App. Rule 309(c) provides that five members of the Court may vote to grant rehearing "in whole or in part” and Rule 309(d) provides that the Clerk will give all parties "notice of disposition of the motion." If the majority also believes that its "disposition” of the motion was "to consider the correctness of the holding by the court of appeals," it is equally mistaken, for the reasons given ante.