Bernard Daniel v. State

• Court: Court of Appeals of Texas
• Decided: April 8, 2021
• Docket: 03-20-00519-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00325-CR ________________________

BERNARD DANIEL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 27th District Court Bell County, Texas Trial Court No. 80234; Honorable John Gauntt, Presiding

April 8, 2021

ORDER RETURNING TRANSFERRED APPEAL Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellant, Bernard Daniel, appeals from his conviction following a plea of guilty to

driving while intoxicated, third or more, a third degree felony. 1 Originally appealed to the

Third Court of Appeals, the appeal was later transferred to this court pursuant to an order

of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2013)

(authorizing the Supreme Court to transfer appeals from one court of appeals to another

as part of its docket equalization efforts); Misc. Docket Order No. 20-9117 (Tex. Oct. 13,

1 TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2020) 2020) (directing the Third Court of Appeals to transfer the first thirty-eight cases filed on

or after September 25, 2020, to the Seventh Court of Appeals).

On March 26, 2021, the State filed its Motion to Transfer Case Back to Third Court

of Appeals because it believes that this case may turn on whether that court’s precedent,

which has been criticized and rejected by the Texas Court of Criminal Appeals in a non-

binding plurality opinion, must be followed by this court. The State further believes that it

is appropriate to return this matter to the Third Court of Appeals so that it may review its

own precedent. Appellant has not filed a response; however, the Third Court of Appeals

does concur with this request.

The proper procedure for presenting a motion to transfer to the Texas Supreme

Court is for the party requesting the transfer to file a copy of the motion to transfer in each

of the two courts of appeals (which the State has done), asking that, when the motion is

forwarded to the Supreme Court, each court of appeals shall advise the Supreme Court,

in writing, whether it has any objections to the proposed transfer. On March 30, 2021,

the Seventh Court of Appeals found the State had shown good cause for re-transferring

this appeal to the Third Court of Appeals and so notified the Supreme Court. Pursuant to

and in compliance with an order of the Supreme Court of Texas, dated April 1, 2021,

Misc. Docket No. 21-9038, we direct the clerk of this court to immediately return this

appeal to the Third Court of Appeals, along with the appellate record, all party filings, and

all orders of the court.

It is so ordered.

Per Curiam

Do not publish. 2