Wachtendorf, John Allen Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0280-15
THE STATE OF TEXAS
v.
JOHN ALLEN WACHTENDORF, JR., Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
WILLIAMSON COUNTY
N EWELL, J., filed a concurring opinion.
I agree with the plurality that the court of appeals properly dismissed the State’s
appeal in this case because the court of appeals lacked jurisdiction. I write separately
because I believe the plurality opinion in this case serves no purpose when the court of
appeals opinion correctly laid out the settled, applicable law and properly resolved the issue
at hand based upon this Court’s existing precedent. State v. Wachtendorf, No. 03-14-0633-
CR, 2015 WL 894731 at *2 (Tex. App.–Austin Feb. 26, 2015) (not designated for
Wachtendorf Concurring - 2
publication) (holding that the State’s notice of appeal was untimely based upon State v.
Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991) and State ex rel. Sutton v. Bage, 822
S.W.2d 55 (Tex. Crim. App. 1992)). As a matter of consistency, we should have resolved
this case in the same way we resolved Davis v. State–by simply refusing discretionary
review. Davis v. State, No. PD-1490-14, slip op. at 2 (Tex. Crim. App. Mar. 18, 2015) (not
designated for publication). Because that avenue is no longer available, we should just
dismiss the petition for discretionary review as improvidently granted now that it is clear that
the court of appeals reached the right result for the right reasons.
With these thoughts I concur.
Filed: November 18, 2015
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