Opinion
No. PD-0230-06.
May 3, 2006.
Appeal from the 263rd District Court, Harris County, Jim Wallace, J.
Nicole DeBorde, Houston, for appellant.
ORDER
A jury convicted Appellant of possession of cocaine and assessed punishment at confinement for thirty-five years. The Court of Appeals affirmed the conviction on September 23, 2004. Jones v. State, No. 01-03-00651-CR, 2004 WL 2113023 (Tex.App.-Houston [1st Dist.] delivered September 23, 2004). On July 28, 2005, the court granted Appellant's motion for re-hearing, withdrew its first opinion, and issued a second opinion, again affirming the conviction. Jones v. State, 2005 WL 1774967 (Tex.App.-Houston [1st Dist.], No. 01-03-00651-CR, delivered July 28, 2005). On August 5, 2005, Appellant timely filed his petition for discretionary review in the Court of Appeals. See Tex.R.App.P. 68.2. On August 25, 2005, the Court of Appeals withdrew its opinion in accord with Tex.R.App.P. 50, but failed to issue another opinion in its place within thirty days of the filing of Appellant's petition. On December 8, 2005, the Court of Appeals issued another opinion, again affirming the conviction. Jones v. State, 179 S.W.3d 770 (Tex.App.-Houston [1st Dist.], 2005).
The Court of Appeals' opinion issued on December 8, 2005, was untimely under rule 50 because it was issued more than 30 days after Appellant's petition for discretionary review had been filed. See Ex parte Brashear, 985 S.W.2d 460 (Tex.Crim.App. 1998); Garza v. State, 896 S.W.2d 192 (Tex.Cr.App. 1995). Accordingly, the court had no jurisdiction to issue that opinion. Therefore, the Court of Appeals' opinion issued on December 8, 2005, is ordered withdrawn, and the judgment and opinion of the Court of Appeals that issued on July 28, 2005, are reinstated. With this understanding, Appellant's original petition for discretionary review, filed in the Court of Appeals on August 5, 2005, is granted. Appellant's second petition for discretionary review, filed in the Court of Appeals January 4, 2006, is refused.