Opinion
No. PD-1579-04.
February 2, 2005.
Appeal from the 82nd District Court, Falls County, Robert M. Stem, Judge.
Stan Schwieger, Waco, for Appellant.
Kathryn J. "Jody" Gilliam, County Atty., Marlin, Matthew Paul, State's Atty., Austin, for State.
ORDER
A jury convicted Appellant of aggravated assault and assessed punishment at confinement for seven years. The court of appeals affirmed the conviction on June 23, 2004. Parsons v. State, No. 10-03-00007-CR, 2004 WL 1418634 (Waco, delivered June 23, 2004). On July 20, 2004, Appellant timely filed his petition for discretionary review in the court of appeals. See Tex.R.App.P. 68.2. On August 18, 2004, the court of appeals withdrew its opinion, but failed to issue another opinion in its place. On September 8, 2004, the court of appeals issued another opinion, again affirming the conviction. Parsons v. State, No. 10-03-00007-CR, 2004 WL 2005547 (Waco, delivered September 8, 2004). The dissent noted that the court of appeals did not have jurisdiction to issue the second opinion because it was not timely under Tex.R.App.P 50.
The court of appeals' opinion issued on September 8, 2004, 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 Therefore, the court of appeals' opinion issued on September 8, 2004, is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that issued on June 23, 2004, are reinstated. With this understanding, Appellant's original petition for discretionary review is granted.