IN THE
TENTH COURT OF APPEALS
No. 10-02-00282-CR
Shawna Beller,
Appellant
v.
The State of Texas,
Appellee
From the 411th District Court
Polk County, Texas
Trial Court # 16480
DISSENTING Opinion ON ORDER WITHDRAWING
JUDGMENT AND OPINION ON PETITION FOR
DISCRETIONARY REVIEW
This Court lacks jurisdiction to take the action that it purports to take. Accordingly, I dissent.
We have issued a judgment and opinion in this case. See Beller v. State, No. 10-02-00282-CR, 2004 Tex. App. LEXIS 8343 (Tex. App.—Waco Sept. 15, 2004, pet. filed). Appellant did not file a motion for rehearing. Appellant has now filed a petition for discretionary review. See Appellant’s Pet., Beller v. State (Tex. Crim. App.) (No. PD-04-1___). Justice Reyna, who signed the Court’s opinion, with Justice Vance, together acting as the Court per curiam, now purport to withdraw our judgment and opinion. See Beller v. State, No. 10-02-00282-CR, 2004 Tex. App. LEXIS 10354 (Tex. App.—Waco Nov. 17, 2004, order) (not designated for publication) (per curiam). We lack jurisdiction to do so. Moreover, the Court’s actions do not have the effect that the Court desires, namely the dismissal of Appellant’s petition.
The Court’s order withdrawing its judgment and opinion on petition for discretionary review states:
The opinion and judgment dated September 15, 2004 are withdrawn. Appellant’s petition for discretionary review is dismissed by operation of law. See Tex. R. App. P. 50.
Beller, 2004 Tex. App. LEXIS 10354.
Texas Rule of Appellate Procedure 50, however, does not so provide. Rule 50 provides:
Within 30 days after a petition for discretionary review has been filed with the clerk of the court of appeals that delivered the decision, a majority of the justices who participated in the decision may summarily reconsider and correct or modify the court’s opinion or judgment. If the court’s opinion or judgment is corrected or modified, the original opinion or judgment must be withdrawn and the modified or corrected opinion or judgment must be submitted as the opinion or judgment of the court. The original petition for discretionary review is dismissed by operation of law. Any party may then file with the court of appeals a petition for discretionary review seeking review of the corrected or modified opinion or judgment under Rule 68.2.
Tex. R. App. P. 50. In the instant cause, the Court does not correct or modify its judgment or opinion, and does not submit a modified or corrected judgment or opinion. Indeed, the Court does not submit any judgment or opinion at all. The Court purports only to withdraw its judgment and opinion.
The Court lacks jurisdiction to withdraw our judgment and opinion. After a petition for discretionary review has been filed in the court of appeals, the Court of Criminal Appeals and the court of appeals share limited concurrent jurisdiction. The Court of Criminal Appeals acquires jurisdiction over the court of appeals’ judgment, and the court of appeals loses jurisdiction except to “correct or modify” its judgment or opinion. Before the petition is filed in the court of appeals, the Court of Criminal Appeals has exclusive limited jurisdiction, for example over such matters as motions for extension of time to file the petition. See Tex. R. App. P. 68.2(c). After the petition is filed in the court of appeals, however, primary jurisdiction vests in the Court of Criminal Appeals. The Court of Criminal Appeals has held, “Just as the timely filing of a notice of appeal vests the appellate courts with jurisdiction to consider the appeal, the timely filing of a petition for discretionary review vests this Court with jurisdiction to review the judgment of the Court of Appeals.” Garza v. State, 896 S.W.2d 192, 194-95 (Tex. Crim. App. 1995). By the same token, Rule 50 grants the court of appeals a continuing jurisdiction limited in time and scope. Oldham v. State, 977 S.W.2d 354, 374 n.4 (Tex. Crim. App. 1998) (Price, J., dissenting); see Ex parte Brashear, 985 S.W.2d 460, 460 (Tex. Crim. App. 1998) (per curiam). Interpreting Rule of Appellate Procedure 101, the predecessor of Rule 50, the Court of Criminal Appeals held that the Rules “grant[] the appellate court an additional” period “following the filing of the petition in which to act if the majority of justices who participated in the decision conclude that the original opinion requires reconsideration or modification.” Garza at 195 (interpreting Tex. R. App. P. 101, 49 Tex. B.J. 556, 584 (Tex. Crim. App. 1986) (repealed 1997) (current version at Tex. R. App. P. 50)); see Brashear at 460. That jurisdiction is limited in time to thirty days, and limited in scope to “correct[ing] or modify[ing] the court’s opinion or judgment.” Tex. R. App. P. 50. After the period within which the court of appeals may act under the rule expires, the Court of Criminal Appeals’ jurisdiction becomes exclusive. Brashear at 460; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Garza at 195. This Court lacks jurisdiction merely to withdraw its judgment and opinion after the appellant files a petition for discretionary review.
The predecessor of Rule 50, former Rule 101, was criticized for permitting summary reconsideration without permitting the parties to file a new petition for discretionary review of the new judgment and opinion. See Tex. R. App. P. 101, 49 Tex. B.J. 556, 584 (Tex. Crim. App. 1986) (repealed 1997) (current version at Tex. R. App. P. 50). “It can be argued that because the Rules do not provide for a new petition for discretionary review to be filed in response to a modified opinion, Rule 101 . . . should not be interpreted to authorize a court of appeals to change its initial disposition of a case, but merely to ‘correct or modify’ some minor defect or oversight, whether legal or factual, in its initial opinion.” Luken v. State, 780 S.W.2d 264, 270 n.8 (Tex. Crim. App. 1989). To “correct,” in this sense, means to “make or set right” or “remove the faults or errors from.” Webster’s Third New International Dictionary of the English Language 511 (Philip Babcock Gove ed., unabridged 1993). To “modify,” by the same token, means to “make minor changes in the form or structure of” or “alter without transforming.” Webster’s Third New International Dictionary of the English Language 1452. The Court has done neither of these things.
As Justice Charles Ben Howell of the Dallas Court of Appeals wrote in dissent:
First rule 101, on its face, provides that we may act “summarily.” It is a fundamental tenet of procedural due process that a tribunal shall act only after both parties have been accorded an opportunity to be heard. See U.S. CONST. Amend. XIV, § 1. Our majority interprets rule 101 as empowering this Court to act after only one side to a litigation has been heard. All summary procedures are constitutionally suspect; they do not meet due process minimums unless there is a clear and specific need to act summarily, and then, only if an after-the-fact hearing is provided with all due haste. Cf. Fuentes v. Shevin, 407 U.S. 67, 82, 92 S. Ct. 1983, 1995, 32 L. Ed. 2d 556 (1972) (an individual must be given opportunity for hearing before deprivation of property, except for “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event”). These considerations apply doubly in the criminal context where human liberty is at stake.
Second, the party petitioning for discretionary review has been given the opportunity to maneuver his opponent out of a hearing. He may elect, as here, not to file a motion for rehearing for the intent and purpose of depriving his opponent of the right to be heard and may reserve his grounds to attack our judgment for inclusion in a petition for discretionary review, knowing that the court of appeals will treat the petition as a motion for rehearing. . . .
Third, the rule, as our majority would interpret it, gives to a party the right to file two motions for rehearing, one to be decided after both parties have been accorded the opportunity to be heard, and one to be decided “summarily.” Fourth, as already indicated, the rule effectively deprives the party who has successfully argued his case in a plenary proceeding of the right to be heard before his judgment is taken from him.
Christopher v. State, 779 S.W.2d 459, 464-65 (Tex. App.—Dallas 1989) (op. on reh’g) (Howell, J., dissenting), rev’d on other grounds, 833 S.W.2d 526 (Tex. Crim. App. 1992).
Current Rule 50, the successor of Rule 101, does generally provide that when a court of appeals corrects or modifies its judgment or opinion on petition for discretionary review, so that the original petition is dismissed by operation of law, “Any party may . . . file with the court of appeals a petition for discretionary review seeking review of the corrected or modified opinion or judgment . . . .” Tex. R. App. P. 50. In the instant cause, however, the parties cannot file petitions for discretionary review of this Court’s interlocutory order; parties may file petitions for review only of a court’s decisions. Tex. Code Crim. Proc. Ann. art. 44.45(b) (Vernon 2004-2005); Tex. R. App. P. 68.1; Jack v. State, No.0413-02, 2004 Tex. Crim. App. LEXIS 517, at *9 (Tex. Crim. App. Mar. 24, 2004) (per curiam) (abatement order); Bailey v. State, 87 S.W.3d 122, 123 n.2 (Tex. Crim. App. 2002); Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989) (abatement order) (per curiam); Measeles v. State, 661 S.W.2d 732, 733 (Tex. Crim. App. 1983) (abatement order) (per curiam). The Court’s actions in the instant cause, then, are subject to the same criticisms as former Rule 101.
The Rule 50 issue continues to arise in the Court of Criminal Appeals. In Ex parte Sierra, the court of appeals filed a “supplemental opinion” that “clarified” the original opinion, but did not modify or correct it. Ex parte Sierra, 122 S.W.3d 202, 203 (Tex. Crim. App. 2003) (order) (Johnson, J., concurring). The Court unanimously dismissed the appellant’s petition for discretionary review as untimely filed. See Ex parte Sierra, No. 1832-03, 2003 Tex. Crim. App. LEXIS 962, at *1 (Tex. Crim. App. Dec. 17, 2003) (order); Sierra, 122 S.W.3d 202 (Johnson, J., concurring). In a special concurrence, however, Judge Johnson, joined by three other judges, wrote to add that the appellant’s argument that the court of appeals’ “supplemental opinion” did not bring about the dismissal of the petition under Rule 50 “may have merit.” Sierra, 122 S.W.3d at 203 (Johnson, J., concurring); see Sierra v. State, No. 04-01-00455-CR, 2003 Tex. App. LEXIS 6655 (Tex. App.—San Antonio Aug. 1, 2003, pet. dism’d, untimely filed) (supp. op.) (mem. op.). In the instant cause, too, the per curiam Court’s actions do not implicate Rule 50 and do not bring about the dismissal of the petition by operation of law.
The majority’s apparent interpretation would allow a court of appeals to evade effective review by the Court of Criminal Appeals. As that Court noted in Garza v. Texas, in a similar case in which a court of appeals attempted to act outside of its jurisdiction on a petition for discretionary review, if such were permitted, “there would be nothing this Court could do to promote the timeliness of the appellate process and the very purpose of the Rules would be undermined.” Garza, 896 S.W.2d at 194.
The Rules of Appellate Procedure provide, failing correction or modification of the judgment or opinion, that is,
[u]nless a petition for discretionary review is dismissed under Rule 50, the clerk of the court of appeals must, within 30 days after the petition is filed, send to the clerk of the Court of Criminal Appeals the petition and any copies furnished by counsel, together with the record, copies of the motions filed in the case, and copies of any judgments, opinions, and orders of the court of appeals.
Tex. R. App. P. 68.7(b). Appellant’s petition for discretionary review not having been dismissed under Rule 50, our Clerk is now bound to send it to the Court of Criminal Appeals.
RESPONSE TO THE SO CALLED CONCURRING OPINION
While I disagree with the characterization of events as contained in Justice Vance’s concurring opinion, I have not, and at least for now will not, comment upon the internal operations and decision making process within the Court. Well, I guess I must at least place his effort to quote me in context. Note the quote specifically references “withdrawal” not correct or modify. See Tex. R. App. P. 19. The Court had previously taken the position it could withdraw an opinion after a PDR was filed pursuant to Rule 19, a position to which I had expressed my disagreement. Parsons v. State, No. 10-03-00007-CR, 2004 Tex. App. LEXIS 7527 (Tex. App.—Waco, Aug. 18, 2004, order)(Gray, C.J., dissenting). And if the Court had been consistent in the way it was dealing with this situation, then I had my dissent already prepared by a simple reference to my prior dissenting opinion. But, alas, inconsistency runs rampant. The Court, when challenged on its legal theory, runs a different direction, and creates new problems. It reminds me of The NeverEnding Story (Warner Brothers 1984)(motion picture). I do note that after delaying the issuance of my dissent by four weeks the concurring opinion does not offer any substantive analysis about the relevant issue. It does not matter, then or now; we still have no jurisdiction.
CONCLUSION
The Court lacks jurisdiction on reconsideration on petition for discretionary review to issue an order purporting to withdraw its judgment and opinion, without submitting a corrected or modified judgment or opinion. Moreover, failing such, the Clerk can only forward the petition and record to the Court of Criminal Appeals. I dissent from the Court’s order.
TOM GRAY
Chief Justice
Dissenting opinion on order withdrawing judgment and opinion on petition for discretionary review delivered and filed December 29, 2004[1]
Publish
[1] The Court’s order was issued November 17, 2004 with the notation “Chief Justice Gray dissents and dissenting opinion will issue at a later date.”