Summary
holding that court of appeals does not retain plenary jurisdiction after a petition for review is filed in the Court of Criminal Appeals
Summary of this case from Ex parte GomezOpinion
NO. PD–0705–15
10-07-2015
Sammy Vidales, Appellant v. The State of Texas
Frank Sellers, Hurley & Guinn, Lubbock, for Appellant. Matthew D. Powell, District Attorney Lubbock County, Lubbock, Lisa McMinn, State's Attorney, Austin, for the State.
Frank Sellers, Hurley & Guinn, Lubbock, for Appellant.
Matthew D. Powell, District Attorney Lubbock County, Lubbock, Lisa McMinn, State's Attorney, Austin, for the State.
ORDER
Per curiam
Appellant was convicted of evading arrest or detention with a vehicle and sentenced to confinement for sixty-two years. The Court of Appeals affirmed in part and reversed and remanded in part. Vidales v. State, –––S.W.3d –––– (Tex. App.—Amarillo No. 07–13–00286–CR, delivered May 15, 2015). The State filed a petition for discretionary review on June 12, 2015.
On July 7, 2015, the Court of Appeals withdrew its opinion and issued another opinion in its place. Vidales v. State, 2015 WL 4116140 (Tex. App.—Amarillo No. 07–13–00286–cr, Delivered July 7, 2015). This second opinion is not permitted since Rule 50 of the Texas Rules of Appellate Procedure has been abolished. Ex parte Shaw, 395 S.W.3d 819 (Tex. Crim. App. 2013). Rule 19.1(a) of the Texas Rules of Appellate Procedure provides that the Court of Appeals retains plenary jurisdiction. The Court of Appeals' plenary jurisdiction continues after a petition for review is filed in the Supreme Court, but there is no corresponding rule for continuing jurisdiction after the filing of a petition for review in this Court. Tex. R. App. Proc. 19.2. When a petition for discretionary review is filed with this Court, the appellate court loses authority to issue an opinion. Shaw at 819, Garza v. State, 896 S.W.2d 192, 195 (Tex. Crim. App. 1995).
The Court of Appeals' opinion issued on July 7, 2015, after the State had filed its petition for discretionary review. That opinion is not authorized by the Rules of Appellate Procedure and the court did not have jurisdiction to issue that opinion. See id. Therefore, the Court of Appeals' opinion issued on July 7, 2015, is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that issued on May 15, 2015, is reinstated.
Additionally, we refuse the State's petition for discretionary review filed June 12, 2015, and we refuse Appellant's petition for discretionary review filed August 17, 2015.