Opinion
No. 04-13-00301-CR
01-21-2016
Ex Parte Christopher Ruben ZAVALA, Appellant
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR6759
The Honorable Andrew Wyatt Carruthers, Judge Presiding
ORDER
Sitting: Catherine Stone, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice
"Retired Chief Justice Catherine Stone, not participating." --------
Christopher Zavala has filed an "Emergency Motion to Recall and Stay Issuance of New Mandate Based on September 1, 2015 Legislative Amendments to Texas Penal Code § 33.021" seeking to delay a special trial setting on January 25, 2016. Zavala asks us to recall our mandate in this appeal in which we affirmed the denial of pretrial habeas corpus relief. See Ex parte Zavala, 421 S.W.3d 227 (Tex. App.—San Antonio 2013, pet. ref'd). The State has filed a response opposing the motion, stating we have no jurisdiction to recall the mandate. We agree. Under Texas Rule of Appellate Procedure 18.7, relied on by Zavala, a mandate may only be recalled if the appellate court vacates or modifies its judgment or order after issuing the mandate. TEX. R. APP. P. 18.7; Henderson v. State, 977 S.W.2d 605, 605 (Tex. Crim. App. 1998) ("the recall of a mandate is appropriate only in the event that the court's previous judgment is vacated or modified"). The mandate was issued on July 14, 2014. Under Rule 19.1, our plenary power to vacate or modify the judgment has long since expired. See TEX. R. APP. P. 19.1, 19.3; see also Hennington v. State, 144 S.W.3d 42, 43 (Tex. App.—Eastland 2004, pet. ref'd) (after plenary power expires, court of appeals cannot vacate or modify its judgment). While Rule 19.3(b) provides that, after plenary power expires, an appellate court may "issue and recall its mandate as these rules provide," when read with Rule 18.7 it is clear that a mandate may only be recalled after a judgment is vacated or modified. TEX. R. APP. P. 18.7, 19.3(b); Perry v. State, No. 01-14-00577-CR, 2014 WL 5593754, at *1-2 (Tex. App.—Houston [1st Dist.] Nov. 4, 2014, no pet.) (mem. op., not designated for publication). Accordingly, the motion is DENIED.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of January, 2016.
/s/_________
Keith E. Hottle
Clerk of Court