Vidales, Sammy ( 2015 )

PD-0705-15
PD-0705-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/9/2015 4:43:45 PM
Accepted 7/10/2015 4:03:14 PM
ABEL ACOSTA
CLERK
OFFICE OF
STATE PROSECUTING ATTORNEY
P.O. BOX 13046
CAPITOL STATION
AUSTIN , TX 78711
(512) 463-1660
July 9, 2015
July 10, 2015
Honorable Abel Acosta
Clerk of the Court
P.O. Box 12308, Capitol Station
Austin, Texas 78711
Re: The State of Texas v. Sammy Vidales, PD-0705-15 (No. 07-13-00286-CR)
Dear Mr. Acosta,
The Seventh Court of Appeals issued its decision on May 15, 2015. See Vidales v.
State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033 (Tex.
App.—Amarillo 2015). The State Prosecuting Attorney filed her petition for
discretionary review in this Court on June 12, 2015. This week, on July 7, 2015, the
Seventh Court of Appeals withdrew its May 15th opinion and issued a substitute
opinion. See Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App.
LEXIS 5033 (Tex. App.—Amarillo 2015) (substitute). Citing Texas Rule of
Appellate Procedure 19.1(a),1 the court stated:
This court’s plenary power expires sixty days after judgment if no time
filed motion for rehearing is pending. On June 15, 2015, Appellant did
1
That Rule provides: “A court of appeals’ plenary power over its judgment
expires: (a) 60 days after judgment if no timely filed motion for rehearing or en
banc reconsideration, or timely filed motion to extend time to file such a motion, is
then pending . . . .”
file a motion for rehearing; however, that motion was not timely filed.
Although the State filed a Petition for Discretionary Review, it did not
file a motion for rehearing; therefore, no timely filed motion for
rehearing is currently pending.
2015 Tex. App. LEXIS 5033, at *2 n.1.
Contrary to the Amarillo Court’s determination, it lost jurisdiction over the appeal
once the State Prosecuting Attorney’s petition was filed. Ex parte Shaw, 395 S.W.3d
819, 819 (Tex. Crim. App. 2013) (per curiam).
In Ex parte Shaw, as in this case, the court of appeals withdrew its original opinion
and issued a substitute opinion after the State filed its PDR. Id. This Court held,
“This second opinion [was] not permitted since Rule 50 of the Texas Rules of
Appellate Procedure was abolished on July 12, 2011. Accordingly, when a petition
for discretionary review is filed, the appellate court loses authority to issue an
opinion.” Id. Declaring the second opinion to be unauthorized, the Court ordered it
to be withdrawn and reinstated the court of appeals’ first opinion. Id.
Additionally, the court of appeals’ reliance on Rule 19.1(a) is misplaced. Its plenary
jurisdiction was terminated when this Court assumed jurisdiction upon the filing of
the State’s PDR.
The State Prosecuting Attorney therefore requests that this Court order the Amarillo
Court’s to withdraw its unauthorized substitute opinion and reinstate its May 15th
decision and rule on the State’s PDR.2
Sincerely,
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
cc: Hon. Jeffrey S. Ford
Hon. Frank Seller
2
Because Appellant’s motion for rehearing was untimely filed, there is no issue as
to whether the Amarillo Court retained jurisdiction despite the State’s PDR.