Opinion
No. 07-04-0322-CR
August 3, 2004. DO NOT PUBLISH.
Appeal from the 320th District Court of Potter County; No. 45,316-D; Honorable Don Emerson, Judge.
Panel A: Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARING
Originally we dismissed appellant Tommy Heath, Jr.'s appeal for want of jurisdiction for filing an untimely notice of appeal. By his motion for rehearing, appellant asserts he was granted an out-of-time appeal by the Court of Criminal Appeals. We grant the motion and withdraw our original opinion and judgment of June 23, 2004, and, in lieu thereof, issue the following opinion reinstating the appeal. When the clerk's record was filed in this appeal on June 11, 2004, this Court had not received notice from the Court of Criminal Appeals that appellant had been granted an out-of-time appeal on April 28, 2004. Thus, the notice of appeal filed on May 24, 2004, contained in the clerk's record by which appellant expressed an intent to appeal the trial court's revocation of community supervision pronounced on October 14, 2003, appeared untimely. By his motion for rehearing, appellant details the events leading to his application for a writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure and the Court of Criminal Appeals' grant of relief. On July 23, 2004, this Court received a copy of the order from the Court of Criminal Appeals granting appellant an out-of-time appeal and instructing him to file a notice of appeal within 30 days after mandate was issued. Mandate having been issued by the Court of Criminal Appeals on April 28, 2004, appellant's notice of appeal filed on May 24, 2004, is timely. Thus, we reinstate the appeal and direct appellant to file his brief within 30 days after the date of this opinion. The State's brief will be due within 30 days after appellant's brief is filed. See Tex.R.App.P. 38.6(a) and (b). Accordingly, appellant's motion for rehearing is granted and his appeal is reinstated effective the date of this opinion.