Opinion
NO. 01-16-00336-CR
05-22-2018
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
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 Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Justice Massengale, concurring in the denial of the motion. Do not publish. TEX. R. APP. P. 47.2(b).