ERIC LEE DIAZ APPELLANT v. THE STATE OF TEXAS APPELLEE (2011)

ORDER ON REMAND

Appellant Eric Lee Diaz appealed from the revocation of his probation.   On June 2, 2009, we dismissed the appeal for want of jurisdiction because we concluded his late-filed notice of appeal was not accompanied by a timely motion for extension of time.  Diaz v. State, No. 07-09-00147-CR, 2009 Tex.App. LEXIS 3833 (Tex.App.-Amarillo June 2, 2009).   On August 3, appellant filed a petition for discretionary review.   Reviewing the petition and an affidavit of counsel, we determined our earlier conclusion was incorrect, and that the motion for extension of time to file the notice of appeal was placed in the mail within fifteen days after the deadline for filing the notice of appeal, and thus was timely.   On September 18, we therefore withdrew our June 2 opinion, and issued an order indicating appellant's notice of appeal was timely.   Diaz v. State, No. 09-00147-CR, 2009 Tex.App. LEXIS 7363 (Tex.App.-Amarillo Sept. 18, 2009).   We reinstated his appeal.   The appellate timetable was thus re-started at that point, and our order provided appellant thirty days within which to file his brief.   He did so.   On August 17, 2010, we issued an opinion affirming the trial court's judgment.  Diaz v. State, No. 07-09-00147-CR, 2010 Tex.App. LEXIS 6632 (Tex.App.-Amarillo Aug. 17, 2010, pet. granted Diaz, 2010 Tex.Crim.App. LEXIS 1519).

By an opinion delivered November 10, 2010, the Court of Criminal Appeals determined our August 17 opinion was untimely under Rule of Appellate Procedure 50, ordered it withdrawn and reinstated our June 2, 2009 judgment and opinion.  In re Diaz, No. PD-0945-09, 2010 Tex.Crim.App. LEXIS 1519 (Tex.Crim.App. Nov. 10, 2010).   The Court of Criminal Appeals also vacated our June 2, 2009 judgment and remanded the case to us “to properly consider application of Rule 9.2.”   Id.;  see Tex.R.App. P. 9.2.

Having examined the record again, we reach the same conclusion that led to our September 18, 2009 order.   Based on the information later made a part of the record, our June 2, 2009 dismissal of the appeal was incorrect.   The trial court revoked appellant's probation and sentenced him on March 24, 2009.   He filed his notice of appeal with the trial court on May 7, within fifteen days of its due date.   Also on May 7, he placed in the mail a motion for extension of time to file the notice of appeal, addressed to this court.   See Tex.R.App. P. 26.3.

Although our September 18, 2009 order did not expressly grant appellant's motion for extension, it impliedly did so.   By that order, we withdrew our dismissal of the appeal, and reinstated it.   We reaffirm those actions now.   Appellant's notice of appeal was timely filed.

The brief appellant's counsel filed was one pursuant to Anders v. California,¹ and it was accompanied by a motion to withdraw.   See In re Schulman, 252 S.W.3d 403 (Tex.Crim.App.2008).   In our August 17, 2010, opinion, we granted counsel's motion.   That opinion itself having been withdrawn, counsel's duty to represent appellant is reinstated.   See Tex.Code Crim. Proc. Ann. art. 26.04(j)(2) (West 2009) (appointed counsel shall represent client until, inter alia, appeals are exhausted).   The actions taken by the Court of Criminal Appeals and this court since the Anders brief was filed have the effect of returning the case to an earlier point in the appellate timetable.   Accordingly, we will provide counsel with an opportunity to submit amended or supplemental briefing.

Any amended or supplemental brief appellant desires to file is due on or before February 22, 2011.   If, before that date, appellant decides not to submit additional briefing, counsel is requested to notify the Court in writing of that decision.

It is so ordered.

Do not publish.

FOOTNOTES

FN1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)..  FN1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Per Curiam