OFFICE OF 

STATE PROSECUTING ATTORNEY

P.O. BOX 13046

CAPITOL STATION

AUSTIN, TX 78711

(512) 463-1660

July 9, 2015

Honorable Abel Acosta

Clerk of the Court

P.O. Box 12308, Capitol Station

Austin, Texas 78711

Re: The State of Texas v. Sammy Vidales, PD-0705-15 (No. 07-13-00286-CR)

Dear Mr. Acosta,

The Seventh Court of Appeals issued its decision on May 15, 2015. See Vidales v.

State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033 (Tex.

App.—Amarillo 2015). The State Prosecuting Attorney filed her petition for

discretionary review in this Court on June 12, 2015. This week, on July 7, 2015, the

Seventh Court of Appeals withdrew its May 15th opinion and issued a substitute

opinion. See Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App.

LEXIS 5033 (Tex. App.—Amarillo 2015) (substitute). Citing Texas Rule of

Appellate Procedure 19.1(a), the court stated: 1

This court’s plenary power expires sixty days after judgment if no time 

filed motion for rehearing is pending. On June 15, 2015, Appellant did

 That Rule provides: “A court of appeals’ plenary power over its judgment 1

expires: (a) 60 days after judgment if no timely filed motion for rehearing or en

banc reconsideration, or timely filed motion to extend time to file such a motion, is

then pending . . . .” 

PD-0705-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/9/2015 4:43:45 PM

Accepted 7/10/2015 4:03:14 PM

ABEL ACOSTA

CLERK
file a motion for rehearing; however, that motion was not timely filed. 

Although the State filed a Petition for Discretionary Review, it did not

file a motion for rehearing; therefore, no timely filed motion for

rehearing is currently pending. 

2015 Tex. App. LEXIS 5033, at *2 n.1.

Contrary to the Amarillo Court’s determination, it lost jurisdiction over the appeal

once the State Prosecuting Attorney’s petition wasfiled. Ex parte Shaw, 395 S.W.3d

819, 819 (Tex. Crim. App. 2013) (per curiam). 

In Ex parte Shaw, as in this case, the court of appeals withdrew its original opinion

and issued a substitute opinion after the State filed its PDR. Id. This Court held,

“This second opinion [was] not permitted since Rule 50 of the Texas Rules of

Appellate Procedure was abolished on July 12, 2011. Accordingly, when a petition

for discretionary review is filed, the appellate court loses authority to issue an

opinion.” Id. Declaring the second opinion to be unauthorized, the Court ordered it

to be withdrawn and reinstated the court of appeals’ first opinion. Id.

Additionally, the court of appeals’ reliance on Rule 19.1(a) is misplaced. Its plenary

jurisdiction was terminated when this Court assumed jurisdiction upon the filing of

the State’s PDR.

The State Prosecuting Attorney therefore requests that this Court order the Amarillo

Court’s to withdraw its unauthorized substitute opinion and reinstate its May 15th

decision and rule on the State’s PDR. 

2

Sincerely,

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

cc: Hon. Jeffrey S. Ford

Hon. Frank Seller 

 Because Appellant’s motion for rehearing was untimely filed, there is no issue as 2

to whether the Amarillo Court retained jurisdiction despite the State’s PDR.