          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-0280-15



                                THE STATE OF TEXAS

                                              v.

                   JOHN ALLEN WACHTENDORF, JR., Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE THIRD COURT OF APPEALS
                         WILLIAMSON COUNTY

              N EWELL, J., filed a concurring opinion.

       I agree with the plurality that the court of appeals properly dismissed the State’s

appeal in this case because the court of appeals lacked jurisdiction. I write separately

because I believe the plurality opinion in this case serves no purpose when the court of

appeals opinion correctly laid out the settled, applicable law and properly resolved the issue

at hand based upon this Court’s existing precedent. State v. Wachtendorf, No. 03-14-0633-

CR, 2015 WL 894731 at *2 (Tex. App.–Austin Feb. 26, 2015) (not designated for
                                                                    Wachtendorf Concurring - 2

publication) (holding that the State’s notice of appeal was untimely based upon State v.

Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991) and State ex rel. Sutton v. Bage, 822

S.W.2d 55 (Tex. Crim. App. 1992)). As a matter of consistency, we should have resolved

this case in the same way we resolved Davis v. State–by simply refusing discretionary

review. Davis v. State, No. PD-1490-14, slip op. at 2 (Tex. Crim. App. Mar. 18, 2015) (not

designated for publication). Because that avenue is no longer available, we should just

dismiss the petition for discretionary review as improvidently granted now that it is clear that

the court of appeals reached the right result for the right reasons.

       With these thoughts I concur.




Filed: November 18, 2015

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