Pumphrey v. State

689 S.W.2d 466 (1985)

Michael J. PUMPHREY, Appellant, v. The STATE of Texas, Appellee.

No. 905-84.

Court of Criminal Appeals of Texas, En Banc.

May 15, 1985.

Hugh O'Fiel, Beaumont, for appellant.

James S. McGrath, Dist. Atty., R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ORDER

PER CURIAM.

The Beaumont Court of Appeals, in a published opinion, affirmed the conviction of Michael J. Pumphrey, appellant, for committing the offense of sexual abuse. Punishment, enhanced, was assessed at thirty-three (33) years' confinement in the Texas Department of Corrections and a $2,500 fine. See Pumphrey v. State, 691 S.W.2d 5 (Tex.App.Beaumont 1984).

Thereafter, counsel for Pumphrey filed with the Clerk of the Beaumont Court of Appeals what purported to be an appellant's petition for discretionary review. This Court eventually received that document. We carefully examined the document in order to make the determination whether it was prepared in conformity with Tex.Cr.App.R. 304(d), which rule states what an appellant's petition for discretionary review should contain. This Court's members unanimously agreed that the document was not prepared in conformity with *467 the rule. On April 10, 1985, this Court entered the following Order:

It is therefore Ordered by this Court that within fifteen (15) days of the date of this Order, counsel for appellant shall file with the Clerk of this Court one (1) original of a petition for discretionary review, which is to be prepared in conformity with Tex.Cr.App.R. 304 (d), and nine (9) legible copies of the original. Counsel shall serve, by certified mail, return receipt requested, one (1) copy of the petition for discretionary review on the attorney of record for the appellee and one (1) copy of the petition for discretionary review on the State Prosecuting Attorney. Failure of counsel to comply with this Order will cause this Court to summarily refuse the document that has been filed on behalf of appellant.

On April 17, 1985, this Court received a second document from appellant's counsel. We have carefully examined it in order to make the determination whether it was prepared in conformity with both the above rule and this Court's Order dated April 10, 1985.

We find and hold that the second document that appellant's counsel has filed with this Court does not comply with either Tex.Cr.App.R. 304(d) or this Court's Order of April 10, 1985.

Therefore, pursuant to our Order dated April 10, 1985, this Court will treat the second document as "appellant's petition for discretionary review" and will Order that it be summarily refused for failure to comply with both Tex.Cr.App.R. 304(d) and this Court's Order of April 10, 1985.

IT IS SO ORDERED.

MILLER, J., does not join in this order.