IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0945-09
ERIC LEE DIAZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
RANDALL COUNTY
Per Curiam.
OPINION
Appellant was convicted of aggravated assault and the court assessed punishment at
confinement for fourteen years. The Court of Appeals dismissed the appeal for want of
jurisdiction after deciding that Appellant’s notice of appeal was untimely. Diaz v. State, No.
07-09-00147-CR (Tex.App-Amarillo, delivered June 2, 2009). On August 3, 2009, Appellant
timely filed his petition for discretionary review in the Court of Appeals. See Tex.R.App.P.
68.2. On September 18, 2009, the Court of Appeals withdrew its opinion, but failed to issue
ERIC LEE DIAZ -2
another opinion in its place. On August 17, 2010, the Court of Appeals issued another
opinion and affirmed the conviction. Diaz v. State, No. 07-09-00147-CR (Amarillo, delivered
August 17, 2010).
The Court of Appeals’s opinion issued on August 17, 2010, was untimely under rule
50 of the Texas Rules of Appellate Procedure because it was issued more than 60 days after
Appellant’s petition for discretionary review had been filed. Accordingly, the court had no
jurisdiction to issue that opinion. See Miller v. State, 267 S.W.3d 32 (Tex.Cr.App. 2008);
Jones v. State, 280 S.W.3d 847 (Tex.Cr.App. 2006); Beller v. State, 191 S.W.3d 718
(Tex.Cr.App. 2005); Parsons v. State, 187 S.W.3d 385 (Tex.Cr.App. 2005); Ex parte
Brashear, 985 S.W.2d 460 (Tex.Cr.App. 1998); Garza v. State, 896 S.W.2d 192
(Tex.Cr.App. 1995). Therefore, the Court of Appeals’s opinion issued on August 17, 2010,
is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that
issued on June 2, 2009, are reinstated.
In his initial petition for discretionary review Appellant contended, among other
things, that the Court of Appeals erred to dismiss his appeal because it did not consider or
apply the mailbox rule contained in the Texas Rules of Appellate Procedure, rule 9.2. We
agree. Accordingly, we grant ground one of Appellant’s petition for discretionary review,
vacate the judgment of the Court of Appeals dated June 2, 2009, and remand the case to the
Court of Appeals to properly consider application of rule 9.2.
Delivered November 10, 2010
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