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Nick Lee Griego v. the State of Texas

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OPINION

A jury convicted Appellant of evading arrest or detention, and assessed punishment at confinement for ten years. The Court of Appeals found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Griego v. State, No. 07-09-00206-CR (Tex.App. – Amarillo, delivered June 10, 2010). Additionally, the Court of Appeals determined the evidence was factually insufficient to prove Appellant evaded arrest or detention, so the court reversed the conviction and remanded the case to the trial court for a new trial or for proceedings consistent with the opinion. Id. On October 15, 2010, the State timely filed a petition for discretionary review in the Court of Appeals. See Tex.R.App.P. 68.2. On October 26, 2010, the Court of Appeals withdrew its opinion, but failed to issue another opinion in its place. On January 11, 2011, the Court of Appeals issued another opinion and reformed the conviction to reflect that Appellant was guilty of the class B misdemeanor offense of evading arrest or detention. Griego v. State, S.W.3d (Amarillo, No. 07-09-00206-CR, delivered January 11, 2011). The Court of Appeals’s opinion issued on January 11, 2011, was untimely under rule 50 of the Texas Rules of Appellate Procedure because it was issued more than 60 days after the State’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 Therefore, the Court of Appeals’s opinion issued on January 11, 2011, is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that issued on June 10, 2010, are reinstated.

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