Ex parte Sidney Earl BRASHEAR, Appellant.[1]
No. 1182-98.Court of Criminal Appeals of Texas, En Banc.
October 21, 1998.John V. Elick, Bellville, David A. Carp, Houston, for Petitioner.
Daniel W. Leedy, Cynthia M. Ruiz, Asst. Dist. Attys., Bellville, Matthew Paul, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
Appellant appealed the denial of pre-trial habeas corpus relief. The Court of Appeals affirmed the trial court's denial of relief. Brashear v. State, 985 S.W.2d 474 (Tex. App.Houston [1st], 1998). Appellant's motion for rehearing was overruled on March 9, 1998, and he filed a petition for discretionary review on April 8, 1998, No. 773-98. On May 21, 1998, the Court of Appeals issued a "Corrected Opinion," withdrawing its earlier opinion of February 12. Appellant filed another petition for discretionary review "to protect his rights" after noting that the court's opinion of May 21st was not timely under Tex. R.App.Pro. 50.
This Court refused Appellant's first petition for discretionary review on June 24, 1998. We have now received Appellant's second petition for discretionary review, which is identical to the first. We refuse Appellant's second petition for discretionary review, but grant review of the case on our own motion to address the authority of the Court of Appeals to issue its corrected opinion of May 21st.
The Court of Appeals' "Corrected Opinion" was untimely under rule 50 because it was issued more than 30 days after Appellant's petition for discretionary review had been filed. See 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' corrected opinion issued on May 21, 1998, is vacated, and the original judgment of the Court of Appeals that issued on February 12, 1998, is reinstated.
NOTES
[1] Because this is an appeal from an application for writ of habeas corpus, the proper style is "Ex parte Brashear." See Ex parte Anderson, 902 S.W.2d 695, n. 1 (Tex.App.Austin 1995, pet. ref'd).