Opinion
No. 04-11-00764-CR
11-18-2013
Kiona F. BOUTANG, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 314520
Honorable Walden Shelton, Judge Presiding
ORDER
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice (not participating)
Marialyn Barnard, Justice
This court issued an opinion affirming appellant's conviction on February 27, 2013. After appellant's motions for rehearing and en banc reconsideration were denied, appellant filed a petition for discretionary review with the Texas Court of Criminal Appeals. On October 9, 2013, appellant's petition for discretionary review was refused by the court. After review was refused, this court's mandate issued on November 6, 2013. On November 13, 2013, appellant filed a motion asking this court to recall its mandate and stay the issuance of the mandate to allow appellant to file a petition for writ of certiorari with the United States Supreme Court. We have reviewed appellant's motion and the Supreme Court's rules and find that the issuance of our mandate does not control the deadline for the filing of appellant's petition in the Supreme Court. Rule 13, subsection 3 of the Supreme Court's rules specifically states that the time for filing a petition for writ of certiorari "runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)." According to Rule 13, subsection 1, "[a] petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review." Thus, under the Supreme Court rules, this court's mandate has nothing to do with the deadline for filing the petition for discretionary review. Moreover, as the petition in this case was denied by the Court of Criminal Appeals on October 9, 2013, appellant has until January 7, 2013, to file a petition for writ of certiorari in the Supreme Court. Accordingly, based on the foregoing, we DENY appellant's motion to recall and stay the mandate.
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Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 18th day of November, 2013.
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Keith E. Hottle
Clerk of Court