dissenting.
I respectfully dissent to the manner in which the majority signed and published opinion disposes of the contention that is presented on behalf of Jerry Pennington, appellant, by Hon. Roy Greenwood, his trial and appellate attorney, namely, that the trial court should not have instructed the jury on the lesser included offense of voluntary manslaughter because the evidence did not raise this offense.
Judge Clinton of this Court has both eloquently and forcefully correctly observed on several occasions this Court’s present function when it comes to reviewing a decision of a particular court of appeals. Just recently he reaffirmed his belief by stating the following:
The power and authority granted this Court is to review ‘decisions of the courts of appeals.’ Article V, Sec. 5, Constitution of the State of Texas; Articles 4.04, See. 2, 44.01 and 44.45, V.A.C.C.P. A decision flows from ‘the reason for such decision’ set forth in a written opinion of a court of appeals. Article 44.24, id. Thus, the discretionary function of [this] Court is to determine whether ‘the reason for such decision’ is correct in law. However, the majority expressly declines to address the reason given by the court of appeals for its decision to reverse the judgment of conviction in this cause, although review was granted for that very purpose. Instead, the majority favors the State with a sort of de novo determination of a claim that has not been presented to and decided by the court of appeals. Laday v. State, 685 S.W.2d 651, 653 (Tex.Cr.App.1985) (Clinton, J., Concurring Opinion.
Also see Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., Dissenting Opinion).
In this instance, the majority is acting much like an intermediate appellate court might act in reviewing a ground of error presented for review. This Court, however, is not an intermediate court, but, instead, is the supreme court of criminal appeals for the great State of Texas. The majority opinion should be quickly but gracefully withdrawn.
Greenwood asserted on direct appeal that the trial judge should not have, over his trial objections, instructed the jury on voluntary manslaughter. From the trial objections Greenwood made in the trial court, I find that Greenwood clearly demonstrated for the record that he did not want voluntary manslaughter included in the court’s charge.
I also believe that then Chief Justice Phillips, and then Justice Shannon and Justice Powers of the Austin Court of Appeals, and presumably their staffs, did not suffer from myopia when they considered, and rejected, the contention Greenwood presents to us for review. See Pennington v. State, 644 S.W.2d 64 (Tex.App.-Austin 1982).
This Court granted appellant’s petition that was prepared and filed by Greenwood in order to make the determination whether the court of appeals correctly decided Greenwood’s contention. We should address appellant’s contention, and not favor the parties with a sort of de novo determination of a claim that has not been presented to and decided by the Austin Court of Appeals.
I respectfully dissent to what the majority does in this cause.