COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Ex parte Joseph Gomez
Appellate case number: 01-20-00004-CR & 01-20-00005-CR
Trial court case number: 1657519 & 1657521
Trial court: 338th District Court of Harris County
Appellant Joseph Gomez filed a motion asking this Court to designate the opinion in this
case for publication.
Rule 19.3 of the Texas Rules of Appellate Procedure permits an appellate court whose
plenary power has expired to order its opinion published in accordance with Rule 47. See TEX. R.
APP. P. 19.3, 47. Rule 47.2(b) requires that a majority of the panel designate the opinion as
“publish” or “do not publish” before it is handed down. TEX. R. APP. P. 47.2(b). It further
provides: “Any party may move the appellate court to change the notation, but the court of
appeals must not change the notation after the Court of Criminal Appeals has acted on any
party’s petition for discretionary review or other request for relief.” Id. In addition, the “Court of
Criminal Appeals may, at any time, order that a ‘do not publish’ notation be changed to
‘publish.’” Id.
This Court’s plenary power expired when the State filed a petition for discretionary
review. See Vidales v. State, 471 S.W.3d 457, 458 (Tex. Crim. App. 2015) (holding that court of
appeals does not retain plenary jurisdiction after a petition for review is filed in the Court of
Criminal Appeals); see also TEX. R. APP. P. 19.2 (providing that plenary power of court of
appeals continues after the filing of a petition for review in the Supreme Court but not extending
the rule to the Court of Criminal Appeals). In addition, the Court of Criminal Appeals issued an
order granting the State’s motion to recall the mandates in these cases.
Because the Court of Criminal Appeals has acted on a party’s request for relief, Rule 47
does not authorize this Court to designate the opinion in this case for publication. See TEX. R.
APP. P. 47.2(b). Because we otherwise lack plenary power, we dismiss this motion.
It is so ORDERED.
Judge’s signature: ____/s/ Peter Kelly__________
Acting individually Acting for the Court
Panel consists of Justices Keyes, Kelly, and Landau.
Date: September 10, 2020