dissenting.
I respectfully dissent to what the majority does in this cause because, in light of what has now been belatedly urged by the State before this Court, I believe that the proper course of action would be to remand this cause to the Beaumont Court of Appeals for it to reconsider its opinion.
The majority opinion correctly observes in its footnote 1 that “[njeither party pointed the court [of appeals] to the appellant’s judicial admission at the guilt-innocence phase of trial.” See Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969), in which this Court stated the following, “We specifically reject appellant’s claim that evidence offered at the guilt stage of the proceedings cannot be considered in determining the issue or issues to be determined at the penalty stage of the proceedings.” (758).
The local assistant district attorney, who represented the State before the court of appeals and who also filed the petition for discretionary review on behalf of the State of Texas, confesses the following before this Court: “The State submits that the State’s attorney [sic] on appeal ... overlooked the fact that appellant had admitted *654during the guilt phase [of the trial] that he was the same person who was convicted in Cause No. 37774 in the 252nd District Court of Jefferson County, Texas.”
Thus, this Court is now placed in the position of reviewing, not by way of a petition for discretionary review, but by direct appeal, the State’s belatedly urged contention. However, when it comes to some contention that the State urges before this Court in a petition for discretionary review, this Court has held the following: “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 an orderly fashion and determined by the appropriate court of appeals.” Noel v. State (Tex.Cr.App., No. 827-83, delivered March 14, 1984). Cf. Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr.App.1984).
Appellant, in his response to the State’s Petition for Discretionary Review, which the majority opinion does not even bother to address, correctly points out the following: “If it was in fact an error for the Court of Appeals to sustain respondent’s ground of error, it was incumbent upon the State to [at least] point out the error in its motion for rehearing. To allow the State to raise new matters not brought out in the original appeal or on rehearing would open up a panacea [sic] of problems by way of precedent. The parties could simply ignore the initial appeal and wait until the case came up on discretionary review to present issues which should have been settled in the lower courts.”
It appears to me, in light of the State’s above concession, that when the court of appeals wrote its opinion in this cause, it very well could have invoked and applied Rule 419, T.R.C.P., to this cause. That rule provides: “Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.” Also see Art. 38.02, V.A.C.C.P.
Regardless of how the court of appeals decided this cause, I believe it is imperative for this Court to at least give the court of appeals the opportunity to state how it decided this cause before it hands down an opinion that, in my view, is a slap in the face to the court of appeals.
In the immortal words of my judicial brother Clinton, “To such a waste of time, resources, and effort of the criminal justice system I must dissent [to what the majority does in this cause].” Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., Dissenting Opinion).