IN THE
TENTH COURT OF APPEALS
No. 10-07-00295-CR
JOHNNY RAY ABBOTT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 28838CR
DISSENTING OPINION TO LETTER ORDER
REQUESTING ADDITIONAL BRIEFING ON REMAND
The majority has voted to issue the following letter order requesting additional
briefing in this appeal which is on remand from the Court of Criminal Appeals:
The record and mandate of the Court of Criminal Appeals have been
received and the case has been reinstated on this Court’s docket.
The Appellant will have 30 days from the above date to file an additional
brief and the State will have 30 days after the filing of Appellant’s brief to
file a response.
It appears that this Court does not have jurisdiction of this appeal. See
Abbott v. State, 271 S.W.3d 694, 697 (Tex. Crim. App. 2008). The Court
therefore requests the parties to address jurisdiction in their additional
briefs.
I respectfully dissent.
The parties fully briefed the issue of this Court’s jurisdiction in the Court of
Criminal Appeals. See Abbott, 271 S.W.3d at 696. The Court of Criminal Appeals
unequivocally held that this Court does not have jurisdiction and that we “should have
dismissed the appeal for lack of jurisdiction.” Id. at 695, 697. There is nothing further to
be decided, and this appeal must be dismissed for want of jurisdiction. See Strange v.
State, 258 S.W.3d 184, 185 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“If our
jurisdiction has not been legally invoked, our only appropriate disposition is to dismiss
for want of jurisdiction.”). Requesting additional briefing on remand is a futile exercise
which unnecessarily burdens the parties and constitutes an unnecessary expenditure of
scarce judicial resources. See In re Nabelek, 200 S.W.3d 364, 366 (Tex. App.—Waco 2006,
orig. proceeding) (Gray, C.J., dissenting) (“If every fact alleged by Nabelek is true,
requesting a response to this petition for a writ of mandamus is a waste of the collective
resources of this Court, the State judicial system, the taxpayers of this State, and
ultimately infringes on the rights of parties who properly have matters pending before
this Court that need a resolution.”); see also Bell v. State, 956 S.W.2d 560, 561 (Tex. Crim.
App. 1997) (briefing on remand unnecessary for issue already briefed by parties).
Because the majority insists on pursuing this course, I respectfully dissent.
FELIPE REYNA
Justice
Abbott v. State Page 2
Dissenting opinion delivered and filed April 8, 2009
Publish
Abbott v. State Page 3