             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is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that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
Do not publish
