Gerald Allen Perry v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 01-14-00577-CR
• Status: Published

Opinion

Opinion issued November 4, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00577-CR ——————————— GERALD ALLEN PERRY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 180th District Court Harris County, Texas Trial Court Cause No. 607922

MEMORANDUM OPINION

Appellant, Gerald Allen Perry, proceeding pro se, has filed an appeal of the

trial court’s May 30, 2014 denial of his motion to recall the mandate issued by this Court after affirming his felony conviction in 1994.1 The State has filed a brief in

opposition contending that we lack jurisdiction over this felony post-conviction

appeal. We agree and dismiss the appeal.

Appellant claims that we should recall our 1994 mandate in appellate cause

number 01-93-00207-CR because of an allegedly-intervening Fifth Circuit

decision issued in 1997. See Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997).

While Texas Rule of Appellate Procedure 19.3(b) allows us to recall our mandate

as these rules provide, recalling our mandate under Rule 18.7 only occurs if we

have vacated or modified our judgment. See TEX. R. APP. P. 18.7, 19.3(b).

However, after our mandate issued in 1994, our plenary power expired, and we

lack jurisdiction to vacate or modify our judgment. See TEX. R. APP. P. 19.3.

To the extent this pro se appeal may be construed as an application for a writ

of habeas corpus challenging appellant’s 1994 felony conviction, the relief sought

by appellant can only be granted by a post-conviction writ of habeas corpus. As

we stated in dismissing appellant’s similar appeal of the trial court’s 2012 denial of

his mandamus petition for want of jurisdiction, “Article 11.07 provides the

1 The underlying criminal case is Gerald Allen Perry v. State of Texas, Cause No. 607922, 180th District Court, Harris County, Texas, the Honorable Catherine Evans presiding. We affirmed appellant’s conviction for aggravated robbery, for which he was sentenced to 45 years in prison and a $2,000 fine, on February 24, 1994, and we issued our mandate on August 23, 1994. See Perry v. State, No. 01-93-00207-CR, 1994 WL 52499, at *3 (Tex. App.—Houston [1st Dist.] Feb. 24, 1994, no writ) (not designated for publication). 2 exclusive means to challenge a final felony conviction” and “[o]nly the Texas

Court of Criminal Appeals has jurisdiction over matters related to post-conviction

relief from a final felony conviction.” Perry v. State, No. 01-12-01051-CR, 2012

WL 6213718, at *1 (Tex. App.—Houston [1st Dist.], Dec. 13, 2012, no pet.)

(mem. op., not designated for publication) (citing, inter alia, TEX CODE. CRIM.

PROC. ANN. art. 11.07, § 5 (West Supp. 2011)). Because appellant’s felony

conviction became final in 1994, even if we construe this appeal as a habeas

application, this is a final post-conviction felony proceeding and, thus, we have no

jurisdiction. See id. (citations omitted).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 43.2(f); TEX. CODE CRIM. PROC. ANN. art. 11.07(3)(a). We dismiss any

pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).