GARY LLOYD MILLER v. THE STATE OF TEXAS (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0168-08

GARY LLOYD MILLER, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

FORT BEND COUNTY

Per Curiam.

O P I N I O N

A jury convicted Appellant of aggravated assault and assessed punishment at confinement for forty years. The Court of Appeals affirmed the conviction on March 29, 2007. Miller v. State, No. 14-06-00224-CR (Houston [14th], delivered March 29, 2007). On May 29, 2007, Appellant timely filed his petition for discretionary review in the Court of Appeals. See Tex.R.App.P. 68.2. On June 14, 2007, the Court of Appeals withdrew its opinion, but failed to issue another opinion in its place. On December 13, 2007, the Court of Appeals issued another opinion, again affirming the conviction. Miller v. State, No. 14-06-00224-CR (Houston [14th], delivered December 13, 2007).

The Court of Appeals' opinion issued on December 13, 2007, was untimely under rule 50 because it was issued more than 30 days after Appellant's petition for discretionary review had been filed. See Parsons v. State, 187 S.W.3d 385 (Tex.Crim.App. 2005); 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 Therefore, the Court of Appeals' opinion issued on December 13, 2007, is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that issued on March 29, 2007, are reinstated. With this understanding, Appellant's original petition for discretionary review is refused.

Delivered: April 2, 2008

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