Harris County Criminal Justice Center
Comment: Errors happen. It would be desirable for the rules of appellate procedure to provide a remedy for such occurrences, i.e. an exception to expiration of plenary power in circumstances where the parties were not given notice of issuance of the judgment, and therefore missed the deadline to file a motion for rehearing or for en banc consideration, or a timely petition to the relevant court of last resort.
Order issued May 22, 2018
In The
Court of Appeals
For The
First District of Texas
NO. 01-16-00336-CR
LOUIS R. CLEMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 351st District Court
Harris County, Texas
Trial Court Cause No. 1396258
ORDER
this Court’s mandate, seeking to file an out-of-time motion for rehearing in this
Court and an out-of-time petition for discretionary review in the Texas Court of
Criminal Appeals. See TEX. R. APP. P. 18.7.
We deny appellant’s motion.
A jury found appellant guilty of the offense of aggravated robbery. After
finding true the allegations in the enhancement paragraphs that he had twice
previously been convicted of felony offenses, the jury assessed his punishment at
confinement for 99 years. On August 17, 2017, this Court affirmed the judgment of
the trial court. Clemons v. State, No. 01-16-00336-CR, 2017 WL 3526721, at *9
(Tex. App.—Houston [1st Dist.] Aug. 17, 2017, no pet.) (mem. op., not designated
for publication). Any motion for rehearing was due by September 1, 2017. See TEX.
R. APP. P. 49.1. A petition for discretionary review, if any, was due by September
18, 2017. See TEX. R. APP. P. 68.2(a). There being no motion for rehearing or
petition for discretionary review filed, our plenary power over our judgment expired
on October 16, 2017. See TEX. R. APP. P. 19.1(a). We issued our mandate on
October 27, 2017.
Appellant asserts that he was not afforded an opportunity to timely file a
motion for rehearing in this Court or to timely file a petition for discretionary review
in the Court of Criminal Appeals because he did not receive notice of this Court’s
August 17, 2017 opinion and judgment. This Court’s records reflect that, due to an
administrative error, notice of the opinion and judgment was not sent to the parties.
Appellant, seeking to file an out-of-time motion for rehearing in this Court and an
out-of-time petition for discretionary review in the Court of Criminal Appeals,
requests that this Court withdraw its mandate.
We deny appellant’s request to file an out-of-time motion for rehearing.
Because this Court’s plenary power has expired, we are without jurisdiction to
vacate or modify our judgment. See TEX. R. APP. P. 19.1, 19.3.
Only the Court of Criminal Appeals may enlarge the time for filing a petition
for discretionary review. TEX. R. APP. P. 68.2(c). Consequently, the Court of
Criminal Appeals is the proper forum to grant such an extension of time. Should the
Court of Criminal Appeals grant appellant leave to file an out-of-time petition for
discretionary review, this Court will withdraw its mandate as directed by the Court
of Criminal Appeals. See Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App.
2008) (holding court of appeals not required to recall its mandate for defendant to
seek out-of-time petition for discretionary review). We decline to withdraw our
mandate at this time. See id.; see also TEX. R. APP. P. 19.3 (providing that court of
appeals “may” recall its mandate). Accordingly, the motion to withdraw the
mandate is denied.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
Massengale, J., concurring.
Do not publish. TEX. R. APP. P. 47.2(b).
NO. 01-16-00336-CR
LOUIS R. CLEMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 351st District Court
Harris County, Texas
Trial Court Cause No. 1396258
CONCURRING STATEMENT
[BY JUSTICE MASSENGALE]
I concur in the court’s ruling, denying appellant Louis R. Clemons’s motion
to recall and reissue our mandate. The requested relief would not have the effect of
reinstating our plenary power over the appeal, nor would it trigger a new opportunity
for Clemons to file petition for discretionary review, as his motion suggests. See
TEX. R. APP. P. 19.1 (expiration of plenary power of court of appeals); TEX. R. APP.
P. 68.2 (time to file PDR). Rather, as the court’s order correctly suggests, the
appropriate procedure is for Clemons to file a post-conviction application for a writ
of habeas corpus in the trial court. See TEX. CODE CRIM. PROC. art. 11.07; Ex parte
Valdez, 489 S.W.3d 462, 465 (Tex. Crim. App. 2016); Rodriguez v. Court of
Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558–59 & n.3 (Tex. Crim.
App. 1989).
I respectfully suggest to future reviewing courts that if Clemons applies for
permission to file an out-of-time petition for discretionary review, such relief should
be granted in light of our court’s confession of administrative errors that,
unfortunately, significantly impaired his opportunity and ability to exercise his
postjudgment procedural rights to seek rehearing in the court of appeals and
discretionary review in the Court of Criminal Appeals. See TEX. R. APP. P. 48.1,
48.4; see also Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006) (in
circumstances of “a breakdown in the system” impairing applicant’s right to exercise
the statutory right to file a PDR, granting permission to file out-of-time PDR without
a determination that counsel rendered ineffective assistance).
Michael Massengale
Justice
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