The opinion of the Court states, “We granted appellant’s petition for discretionary review to determine the correctness of the decision below.” Maj. Opinion, at 317.
While that or a similar broad statement of a “reason” for granting review does appear from time to time in an opinion, this Court has declared to the bench and bar “the character of reasons” we will consider in determining whether to grant review. See Tex.R.App.Pro. Rule 200. That a decision of a court of appeals is said to be “incorrect” is not among them, and we have committed the Court to the proposition that a petition for discretionary review which does no more than complain about a claimed error on the part of a court of appeals is not likely to be a fit candidate for review. Id., Rule 202(d)(5); Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986). Here there are apt specific reasons for review.
In the instant cause the opinions delivered in the San Antonio Court of Appeals are published, and there is a dissent to the majority opinion “upon a material question of law necessary to its decision” — indeed, one arising under our own Constitution and statute. Tex.R.App.Pro. Rule 200(c)(5). The issue is whether a constitutional command and statutory dictate that a judge shall not sit in any case wherein he has been counsel for the State need not be obeyed if his act as counsel is “merely perfunctory.” Gamez v. State, 665 S.W.2d 124, 128 (Tex.App.—San Antonio 1983). Now, a majority finds that his executing a protective written pleading for and on behalf of the State does not constitute an assistant district attorney “counsel in the case,” and is not enough to show he did “actually participate” in the case.
So much for mandatory provisions that may not be waived by the parties. Maj. Opinion, at 318-319. To thus reducing their intended purpose and effect to an exercise in semantics, I respectfully dissent.
Furthermore, at the time this PDR was granted some members of the Court were concerned with an increasingly recurring statement of what we deemed to be an erroneous test for determining sufficiency of evidence to corroborate accomplice testimony that was utilized in the majority opinion below, viz:
“We hold there is sufficient evidence to corroborate San Miguel’s testimony more likely than not.”
Gamez v. State, supra, at 126 (my emphasis here and throughout). After granting review in this cause but before deciding it, the occasion arose for this Court to disapprove a similar statement in an opinion by another court of appeals, viz:
“The corroborative evidence need not directly link the accused to the crime or be sufficient alone to establish guilt; it need only make the accomplice testimony more likely to be true than not. Warren v. State, 514 S.W.2d 458 (Tex. Cr.App.1974).”
Vertz v. State, 702 S.W.2d 196 (Tex.Cr.App.1986).
Again today the opinion of the Court disavows that “test.” Maj. Opinion, at 323, n. 7. I join that part of the opinion.