Beller v. State

191 S.W.3d 718 (2005)

Shawna BELLER, Appellant, v. The STATE of Texas.

No. PD-266-05.

Court of Criminal Appeals of Texas.

April 20, 2005.

Karen Zellars, Spring, for Appellant.

William Lee Hon, Assist. DA, Livingston, Matthew Paul, State's Attorney, Austin, for State.

PER CURIAM.

A jury convicted Appellant of theft and assessed punishment at confinement for four years. The Court of Appeals affirmed the conviction on September 15, 2004. Beller v. State, 192 S.W.3d 1, No. 10-02-00282-CR, 2004 WL 2070536 (Waco, delivered September 15, 2004). On October 18, 2004, Appellant timely filed her petition for discretionary review in the Court of Appeals. See Tex.R.App.P. 68.2. On November 17, 2004, the Court of Appeals withdrew its opinion, but failed to issue another opinion in its place.

The Court of Appeals did not act properly under Tex.R.App.P. 50, which requires that the corrected or modified opinion be substituted as the opinion or judgment of the court within 30 days after a petition for discretionary review has been filed with the clerk of the court of appeals. Accordingly, the court had no authority to withdraw its opinion without substituting another within the proper time period. After the 30 day period, the court of appeals had no jurisdiction to act concerning its opinion. 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). Therefore, the Court of Appeals' opinion issued on September 15, 2004, is ordered reinstated. With this understanding, Appellant's original petition for discretionary review is refused.