Garza v. State

896 S.W.2d 192, 1995 Tex. Crim. App. LEXIS 28, 1995 WL 106191

• Court: Court of Criminal Appeals of Texas
• Decided: March 15, 1995
• Docket: 506-93
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

A jury found appellant guilty of aggravated sexual assault and indecency with a child, and assessed his punishment at fifteen years’ and ten years’ confinement, respectively. The San Antonio Court of Appeals affirmed appellant’s convictions. Garza v. State, No. 04-91-00481-CR (Tex.App.—San Antonio, delivered November 4, 1992). On December 4,1992, appellant filed a motion for rehearing and a motion for rehearing en banc, which were denied on January 5, 1993. After receiving two extensions of time in which to file the appellant’s petition for discretionary review, appellant filed the petition on March 29, 1993. On April 30, 1993, thirty-two days following the filing of the petition for discretionary review, the Court of Appeals withdrew its opinion of November 4, 1992, and issued a new opinion reversing and remanding the case to the trial court for a new trial. We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in submitting an opinion on reconsideration of appellant’s petition for discretionary review which did not conform to Texas Rule of Appellate Procedure 101.¹

Specifically, the State alleges that the Court of Appeals’ Rule 101 opinion was untimely in that it was issued thirty-two days after the filing of the petition for discretionary review, and not within fifteen days as allowed for in Rule 101.² Further, the State contends that the court’s opinion on reconsideration should be vacated because the Court of Appeals exceeded the scope of Rule 101, which only allows the Court of Appeals to “correct or modify” its original opinion in response to a petition for discretionary review.³

Appellant responds that allowing the Court of Appeals only fifteen days following the filing of a petition for discretionary review “is an extremely short period of time for an appellate court to genuinely give its opinions a rigorous rereading.” Thus, appellant argues that the courts of appeals, “the workhorses of the appellate scheme, ... should be given the latitude of suspending rules to review their own opinions.” Appellant contends “[i]f given such leeway, the work of the appellate courts will surely save this Court the annoyance of correcting bad opinions of the courts of appeals and doing the appellate courts’ work for them.”

Appellant argues that Tex.R.App.Pro. 2(b) permits the appellate court to suspend the operation of Rule 101 on its own motion and take any additional time it deems necessary to render an opinion on reconsideration. However, Rule 2(a) specifically states that the Rules “shall not be construed as to extend or limit the jurisdiction of the courts of appeal-” (emphasis added). Further, the Court of Appeals did not purport to invoke the provisions of Rule 2(b) rendering this portion of appellant’s argument inapplicable.

“Within fifteen days after a petition for discretionary review to the Court of Criminal Appeals has been filed with the Clerk of the Court of Appeals which delivered the decision, a majority of justices who participated in the decision may summarily reconsider and correct or modify the opinion and judgment of the court and shall cause the clerk to certify a copy thereof and include it among the materials forwarded to the Clerk of the Court of Criminal Appeals in accordance with Rule 202(f).”

The tíme limits set forth in the Rules of Appellate Procedure are not discretionary. The courts of appeals have no authority to suspend the operation of a rule of appellate procedure in order to create jurisdiction in the court of appeals where no jurisdiction exists. See Jones v. State, 796 S.W.2d 183 (Tex.Cr.App.1990). The courts of appeals are afforded the opportunity to reexamine their opinions when the party seeking review chooses to file a motion for rehearing pursuant to the Rules of Appellate Procedure. The Court of Appeals had such an opportunity in this case. Further, the rules allow an additional fifteen days for the courts of appeals to “reconsider and correct or modify the opinion or judgment of the court” following the filing of a petition for discretionary review. The Court of Appeals in this case had five months in which to review its original opinion.⁴ After the fifteen day time limit expired, the Court no longer had authority to “reconsider and correct or modify” its original opinion. There is no reasonable basis for providing the Court of Appeals a third opportunity to review its decision under such circumstances. If appellate courts were able to suspend the timetables, to which they are held to comply, 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.

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. Rule of Appellate Procedure 101 grants the appellate court an additional fifteen days 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. After the expiration of fifteen days, however, the court of appeals is no longer authorized to issue an opinion; “[t]he original record, motions filed therein, and certified copies of any judgments, opinions and orders of the court of appeals” are required to be forwarded by the clerk of that court to this Court, Tex.R.App.Pro. 202(f), and this Court has exclusive jurisdiction over the matter.

The Court of Appeals acted without authority to issue its opinion on reconsideration. Therefore, the Court of Appeals’ opinion on reconsideration issued on April 30, 1993, is vacated, and the original judgment of the Court of Appeals issued November 4, 1992, is reinstated.

OVERSTREET, J., dissents.

1 . The same day, this Court ordered appellant's petition be held in abeyance pending the disposition of the State’s petition for discretionary review.

2 . Texas Rule of Appellate Procedure 101 provides:

3 . Because we hold that the Court of Appeals was without authority to issue the Rule 101 opinion outside the fifteen day time period, we do not need to decide this part of the State's argument.

4 . The Court of Appeals originally affirmed appellant's conviction, rejecting the contention that evidence of extraneous offenses had been improperly admitted into evidence during the trial. In its opinion on reconsideration, the Court of Appeals based its decision to reverse the judgment of the trial court on this Court’s opinion in Vernon v. State, 841 S.W.2d 407 (Tex.Cr.App.1992), which coincidentally, was delivered on November 4, 1992, the day the original opinion of the Court of Appeals was delivered. The decision in Vernon was brought to the Court of Appeals’ attention in appellant’s motion for rehearing, and discussed in the State’s response thereto. However, the Court of Appeals, after review, denied the motion for rehearing. The Court of Appeals was thus afforded a second opportunity to review its opinion based on a recent decision from this Court, but did not find the case controlling.