dissenting.
As noted by the majority, we granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in entering an acquittal instead of a conviction for the lesser included offense of theft. Appellant was convicted in a trial before the court of the offenses of credit card abuse and theft from the person. The Court of Appeals concluded that the evidence to support the conviction for theft from the person was insufficient to show that the tak*504ing was from the person, and reversed the conviction and entered an order of acquittal. Farrell v. State, 837 S.W.2d 395 (Tex.App.—Dallas 1992).
Today, the majority sua sponte determines that since the State did not raise the reformation issue in the Court of Appeals, this Court cannot reach the merits of the State’s ground of review. Because the majority’s reliance on the plurality opinion in Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987), appears to me to be wholly erroneous, I dissent.
The issue of what is or is not reviewable under our practice of discretionary review has been, and continues to be, an unnavigable maze. Article 5, Section 5 of our Texas Constitution provides for review of “a decision of a court of appeals in a criminal case as provided by law.” The statutory provisions implementing Article 5, Section 5, utilized the same language: “review decisions of the court of appeals.” Article 44.45, V.A.C.C.P. Similarly, the Rules of Appellate Procedure provide that discretionary review is to “review a decision of a court of appeals in a criminal case.” Rules 200 and 202, Tex.R.App.Pro. Thus, the Constitution, statutes, and rules recognize that this Court’s authority in matters of discretionary review are limited to “decisions” review.
It is with the majority’s interpretation of what a “decision” is that I take issue and where we part company. Relying on this Court’s plurality opinion in Tallant, supra, the majority notes:
“[W]e have held a party ‘may not expect this Court to consider a ground for review that does not implicate a determination by the court of appeals of a point of error presented to that court in orderly and timely fashion.’ ” (Emphasis in majority opinion.)
Even assuming that this is a correct interpretation of this Court’s authority in matters of discretionary review (which I do not, see Tallant, supra at p. 300, McCormick, J. dissenting), the issue upon which we granted discretionary review in this case does not implicate a determination by the Court of Appeals of a point of error. Instead it implicates the Court of Appeals’ judgment which is the remedy the Court of Appeals fashions in every case following its decision on the points of error presented. See Rule 80, Tex. RApp.Pro. Here the State argued, and we granted review to determine, whether the Court of Appeals fashioned the wrong remedy after having addressed the points of error presented to it on direct appeal.
It would be absurd indeed to require the parties to an appeal to the courts of appeals to present points of error to review a judgment of the court of appeals which has yet to be entered. But today’s opinion now requires the parties to divine the remedy the Court of Appeals may adjudge, and object thereto in advance.
The majority recognizes that a motion for rehearing in the court of appeals is not a prerequisite to the granting of discretionary review. Rule 200(d), Tex.R.App.Pro. The majority’s requirement of “orderly and timely presentation” of issues overlooks the provisions of Rule 101, Tex.R.App.Pro., which allows a court of appeals to “reconsider and correct or modify the opinion and judgment” following the filing of a petition for discretionary review.
Where a party is aggrieved by the judgment and not by the decision on a point of error, I believe that the first opportunity for a timely and orderly presentation of such disagreement is either in a motion for rehearing or via a petition for discretionary review since a motion for rehearing is not mandatory. Furthermore, in his reply brief in this Court, the appellant herein has made no argument that we should not reach the merits of the State’s claim.
The practice of the law is by no means an exact science. We cannot expect practioners to anticipate every possible scenario that may arise in the appellate processes, and make an argument for or against as their adversarial position may dictate. The State has here presented for review an important question of law which we should address. Quoting from former Presiding Judge Onion in Tallant, supra:
“I am deeply distressed, however, by the approach taken by the majority in this and other recent cases in adopting a warped *505policy of discretionary review that unduly and unlawfully restricts the authority of this Court of last resort in reviewing decisions by the Court of Appeals. This policy was never constitutionally intended.” 742 S.W.2d at 300.
I would interpret the term “decision” to mean the opinion of a court of appeals addressing a properly presented point of error. I would further hold that the judgment is nothing more than the statutorily dictated remedy which the court fashions as a consequence of its decision, and that the State has in a proper, timely, and orderly fashion presented its ground for review to this Court.
I respectfully dissent.
WHITE and MEYERS, JJ, join this dissent.