Lexter Kennon Kossie #700661 William McConnell Unit 3001 South Emily Drive Beeville, Texas 78102
COUHTOFCRONALAPPEALS March 23, 2015 MAR 27 2015
AM Aco§ti,Clerk Texas Court of Criminal Appeals P.O. BOX 12308, Capitol Station Austin, Texas 78711
RE: Filing Petition For Discretionary Review Case No. 14-94-01171-CR
Dear Clerk:
Please find enclosed for filing the original petition for discretionary review to be filed and submitted to the Court as soon as your time will permit.] By copy of this letter I am forwarding a copy of this document to the Prosecuting Attorney for Texas. Thank you for your time.
Sincerely,
£M^tjiilK^ ffohjua: cc:File LEXTER KENNON KOSSIE cc:State's Prosecuting Attorney Appearing Pro se Case No. 14-94-01171-CR
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN
No. 679887 In the 185th District Court of Harris County , Texas
LEXTER KENNON KOSSIE Appellant
THE STATE OF TEXAS
Appellee
APPELLAMT'S PETITION FOR DISCRETIONARY REVIEW
Lexter Kennon Kossie TDCJ-CID NO.00700661 William McConnell Unit 3001 South Emily Drive Beeville, Texas 78102
Appearing Pro se TABLE OF CONTENTS
Page
Table of contents i
Table of authorities ii
Statement regarding oral arguments iii
Identification of the parties iii
Preliminary statement . l
Summary of the argument 2
Point of error 3 Appellant's Point Of Error 3
Arguments and authorities 4 Appelant's Point Of Error 4
CONCLUSIONS AND PRAYER FOR RELIEF 7
CERTIFICATE OF SERVICE 8 TABLE OF AUTHORITIES
State Cases
Herrin v. State, 668 S.W.)2d 897 (Tex.App.-Dallas 1984) 6 Rodriguez v. State, 28 S.W.3d 25 (Tex.App. 1 Dist.2000) 6
Supreme Court Cases
Evitts v. Lucey, 469 U.S. 387 (1985) 5
State Rules
Tex.R.App.Proc. 3. 1 6, 8 Tex.R.App.Proc. 15 and 15a iii Tex.R. App. Proc. 18 .1 2, 4 Tex.R.iApp.Proc. 19. 3(b) 1, 6 &7
li STATEMENT REGARDING ORAL ARGUMENT
Appellant did not requests oral arguments in this
Case,
IDENTIFICATION OF THE PARTIES
In order that members of this Court may determine
disqualification and recusal under the Tex.R.App.Proc.15
and 15a, Appellant certifies that the following is a com
plete list of the parties, attorneys, and other persons
with an interest in the outcome of this lawsuit.]
Honorable Susan Brown Presiding Judge in the 185th District Court
Mike Anderson Harris County District Attorney
in PRELIMINARY STATEMENT
On October 20, 2014, Appellant filed in the l&th..
Court of Appeals his motion to recall mandate pursuant to
Rule 19.3(b) of Tex.R.App.Proc. Either on the 29th or 30th
of October,2014, the court denied the motion. Appellant did
not receive notice of the court's denial of the motion until
March 16, 2015. Appellant's mandamus is still pending in this
court regarding this issue.]
Nevertheless, Appellant's Motion to Recall Mandate
was denied by the 14th Court of Appeals without explanation.
page 1 SUMMARY OF THE ARGUMENT
The central issue in this appeal was that the,clerk
of the 14th court of appeals violated Rule 18.1 of Tex.Rule
App.Proc. when the clerk failed to timely notify Appellant
that his direct appeal had been affirmed in order that Appel
lant could have filed a timely motion for rehearing.Appel
lant is described as a party by the rule and as such the
clerk was required to give Appellant a timely notice of the
affirmance of his direct appeal. In a situation of this nature
whereas the clerk did not notify the Appellant in a timely
manner, Texas law appears to permit or grant the court of
appeals authority to issue and recall its mandate after the
court's plenary power has expired.The question presented in
this appeal is, whether the 14th court of appeals abused its
discretion in denying appellant's motion to recall mandate?
The 14th court of appeals erred in denying appellant's motion
to recall mandate is argued in a single Point of Error.
page 2 POINT OF ERROR
APPELLANT'S POINT OF ERROR: The 14th Court of Appeals erred in denying Appellant's motion to recall mandate because the clerk of that did not give Appellant a timely notice that his direct appeal had been affirmed and thus, the 14th Court of Appeals had authority to issue and recall its mandate even though its plenary power had expired.
page 3 ARGUMENTS AND AUTHORITIES
APPELLANT'S POINT OF ERROR
The 14th Court of Appeals erred in denying Appellant's motion to recall mandate because the clerk of that court did not give Appellant a timely notice that his direct appeal had been affirmed and thus, the 14th Court of Appeals had authority to issue and recall its mandate even though its plenary power had expired.
Appellant sought to recall the mandate on the grounds
that he missed the deadline for filing a motion for rehearing
because the clerk of that court failed to give Appellant a
timely notice that his direct appeal had been affirmed as re
quired under Tex.R.App.Proc. 18.1. On October 29th or 30th of
2014, the court of appeals denied the motion based on no law
or using a sound discretion. According to Rule 18.1, the clerk
of the appellate court that rendered the judgment must issue a
mandate in accordance with the judgment and send it to the
clerk of the court to which it is directed and to all parties
to the proceeding temphasis supplied] when one of the follow
ing period expires:
(a) In the Court of Appeals.
(2) Ten days after the time has expired for fil-
page 4 ing a motion to extend time to file a motion for rehearing
of a denial, refusal, or dismissal of a petition for review,
or refusal or, dismissal of a petition for discretionary re
view, if no timely filed motion for rehearing or motion to
extend time is pending.
The mandate in this appeal issued on March 13, 1997.
Appellant did not receive a timely notice of the affirmance
of his direct appeal in order that he could file a timely
motion for rehearing. Persons convicted of a crime are enti
tled to effective assistance of counsel for the first level
of appeal to a court of appeal. Evitts v. U.S.; 387 (1985).
In Texas, there are two levels of direct appeal on a criminal
conviction. The first level of the appeal goes to a court of
appeals. The first level consist of an appellant's brief and
if necessary a motion for rehearing. The second level goes to
this court which consists of a petition for discretionary
review and if necessary a motion for rehearing. At this level
a convicted person is not entitled to an attorney. As the name
implies, this Court has discretion?as to whether it will re
view the lower Court's decision. A motion for rehearing is not
pag« 5 a discretionary matter nor is it a prerequisite to filing a
petition for discretionary review. However, there are a higher
percentage of motions for rehearing getting granted than that
of petitions forrdiscretionary review. Rule 19.3(b) Tex.R.App.
Proc. gives the court of appeals to issue and recall its man
dates after the court's plenary power has expired. There is no
set time framed. Appellant is a party as defined in Rule 3.1,
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Lexter Kennon Kossie #700661 William McConnell Unit 3001 South Emily Drive Beeville, Texas 78102
COUHTOFCRONALAPPEALS March 23, 2015 MAR 27 2015
AM Aco§ti,Clerk Texas Court of Criminal Appeals P.O. BOX 12308, Capitol Station Austin, Texas 78711
RE: Filing Petition For Discretionary Review Case No. 14-94-01171-CR
Dear Clerk:
Please find enclosed for filing the original petition for discretionary review to be filed and submitted to the Court as soon as your time will permit.] By copy of this letter I am forwarding a copy of this document to the Prosecuting Attorney for Texas. Thank you for your time.
Sincerely,
£M^tjiilK^ ffohjua: cc:File LEXTER KENNON KOSSIE cc:State's Prosecuting Attorney Appearing Pro se Case No. 14-94-01171-CR
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN
No. 679887 In the 185th District Court of Harris County , Texas
LEXTER KENNON KOSSIE Appellant
THE STATE OF TEXAS
Appellee
APPELLAMT'S PETITION FOR DISCRETIONARY REVIEW
Lexter Kennon Kossie TDCJ-CID NO.00700661 William McConnell Unit 3001 South Emily Drive Beeville, Texas 78102
Appearing Pro se TABLE OF CONTENTS
Page
Table of contents i
Table of authorities ii
Statement regarding oral arguments iii
Identification of the parties iii
Preliminary statement . l
Summary of the argument 2
Point of error 3 Appellant's Point Of Error 3
Arguments and authorities 4 Appelant's Point Of Error 4
CONCLUSIONS AND PRAYER FOR RELIEF 7
CERTIFICATE OF SERVICE 8 TABLE OF AUTHORITIES
State Cases
Herrin v. State, 668 S.W.)2d 897 (Tex.App.-Dallas 1984) 6 Rodriguez v. State, 28 S.W.3d 25 (Tex.App. 1 Dist.2000) 6
Supreme Court Cases
Evitts v. Lucey, 469 U.S. 387 (1985) 5
State Rules
Tex.R.App.Proc. 3. 1 6, 8 Tex.R.App.Proc. 15 and 15a iii Tex.R. App. Proc. 18 .1 2, 4 Tex.R.iApp.Proc. 19. 3(b) 1, 6 &7
li STATEMENT REGARDING ORAL ARGUMENT
Appellant did not requests oral arguments in this
Case,
IDENTIFICATION OF THE PARTIES
In order that members of this Court may determine
disqualification and recusal under the Tex.R.App.Proc.15
and 15a, Appellant certifies that the following is a com
plete list of the parties, attorneys, and other persons
with an interest in the outcome of this lawsuit.]
Honorable Susan Brown Presiding Judge in the 185th District Court
Mike Anderson Harris County District Attorney
in PRELIMINARY STATEMENT
On October 20, 2014, Appellant filed in the l&th..
Court of Appeals his motion to recall mandate pursuant to
Rule 19.3(b) of Tex.R.App.Proc. Either on the 29th or 30th
of October,2014, the court denied the motion. Appellant did
not receive notice of the court's denial of the motion until
March 16, 2015. Appellant's mandamus is still pending in this
court regarding this issue.]
Nevertheless, Appellant's Motion to Recall Mandate
was denied by the 14th Court of Appeals without explanation.
page 1 SUMMARY OF THE ARGUMENT
The central issue in this appeal was that the,clerk
of the 14th court of appeals violated Rule 18.1 of Tex.Rule
App.Proc. when the clerk failed to timely notify Appellant
that his direct appeal had been affirmed in order that Appel
lant could have filed a timely motion for rehearing.Appel
lant is described as a party by the rule and as such the
clerk was required to give Appellant a timely notice of the
affirmance of his direct appeal. In a situation of this nature
whereas the clerk did not notify the Appellant in a timely
manner, Texas law appears to permit or grant the court of
appeals authority to issue and recall its mandate after the
court's plenary power has expired.The question presented in
this appeal is, whether the 14th court of appeals abused its
discretion in denying appellant's motion to recall mandate?
The 14th court of appeals erred in denying appellant's motion
to recall mandate is argued in a single Point of Error.
page 2 POINT OF ERROR
APPELLANT'S POINT OF ERROR: The 14th Court of Appeals erred in denying Appellant's motion to recall mandate because the clerk of that did not give Appellant a timely notice that his direct appeal had been affirmed and thus, the 14th Court of Appeals had authority to issue and recall its mandate even though its plenary power had expired.
page 3 ARGUMENTS AND AUTHORITIES
APPELLANT'S POINT OF ERROR
The 14th Court of Appeals erred in denying Appellant's motion to recall mandate because the clerk of that court did not give Appellant a timely notice that his direct appeal had been affirmed and thus, the 14th Court of Appeals had authority to issue and recall its mandate even though its plenary power had expired.
Appellant sought to recall the mandate on the grounds
that he missed the deadline for filing a motion for rehearing
because the clerk of that court failed to give Appellant a
timely notice that his direct appeal had been affirmed as re
quired under Tex.R.App.Proc. 18.1. On October 29th or 30th of
2014, the court of appeals denied the motion based on no law
or using a sound discretion. According to Rule 18.1, the clerk
of the appellate court that rendered the judgment must issue a
mandate in accordance with the judgment and send it to the
clerk of the court to which it is directed and to all parties
to the proceeding temphasis supplied] when one of the follow
ing period expires:
(a) In the Court of Appeals.
(2) Ten days after the time has expired for fil-
page 4 ing a motion to extend time to file a motion for rehearing
of a denial, refusal, or dismissal of a petition for review,
or refusal or, dismissal of a petition for discretionary re
view, if no timely filed motion for rehearing or motion to
extend time is pending.
The mandate in this appeal issued on March 13, 1997.
Appellant did not receive a timely notice of the affirmance
of his direct appeal in order that he could file a timely
motion for rehearing. Persons convicted of a crime are enti
tled to effective assistance of counsel for the first level
of appeal to a court of appeal. Evitts v. U.S.; 387 (1985).
In Texas, there are two levels of direct appeal on a criminal
conviction. The first level of the appeal goes to a court of
appeals. The first level consist of an appellant's brief and
if necessary a motion for rehearing. The second level goes to
this court which consists of a petition for discretionary
review and if necessary a motion for rehearing. At this level
a convicted person is not entitled to an attorney. As the name
implies, this Court has discretion?as to whether it will re
view the lower Court's decision. A motion for rehearing is not
pag« 5 a discretionary matter nor is it a prerequisite to filing a
petition for discretionary review. However, there are a higher
percentage of motions for rehearing getting granted than that
of petitions forrdiscretionary review. Rule 19.3(b) Tex.R.App.
Proc. gives the court of appeals to issue and recall its man
dates after the court's plenary power has expired. There is no
set time framed. Appellant is a party as defined in Rule 3.1,
thus the clerk was required to give him timely notice of the
affirmance of his direct appeal so Appellant could file a
motion for rehearing if he so desired. Therefore, the court of
appeals had authority to grant Appellant additional time to
file his motion for rehearing. See Herrin v. State,668 S.W.2d
896, 897 (Tex.App.-Dallas 1984),)no pet.)(granting motion to
recall mandate because Appellant did not receive notice of court
of appeals); see also Rodriguez v. State, 28 S.W.3d (App.l Dist.
2000)(Appellant's motion to recall mandate, on grounds that he
missed deadline for petition for discretionary review because
he did not get notice of ruling on motion for rehearing, would
be granted on condiction that he seek appropriate relief in the
Court of Criminal Appeals within 20 days).
page 6 Here in the instant case, the mandate issued on March
13, 1997. Appellant did not receive notice that his appeal had
been affirmed until sometime in July of 1997, when he wrote
the clerk inquiring about the status of his direct appeal. At
that time the time for filing a motion for rehearing had long
expired. In August of 1997, Appellant filed an application
for writ of habeas corpus claiming that he had received inef
fective assistance of counsel on appeal when counsel failed to
notify him of the affirmance of his direct appeal.
On April 17, 1998, this Court granted Appellant relief
in the form of allowing him to file an out-of-time petition
for discretionary review without first giving Appellant an op
portunity to file a motion for rehearing in the court of appeals
which had a higher percentage of getting granted than the one
percent chance of getting the P.D.R. granted. Appellant did not
file a P.D.R.
In conclusion, Appellant contends that even though the
court of appeals' plenary power has expired Rule 19.3(b) of Tex.
R.App.Proc. gives that court the authority to issus and recall
its mandateaas the rules provide. Appellant is a party as de-
page 7 fined in Rule 3.1, thus the clerk was required to give Appel
lant a timely notice of the affirmance of his appeal. Had he
been given notice in a timely matter, Appellant would have filed
his motion for rehearing to bring to the court's attention points
of law and facts in which the court had completely overlooked in
which resulted in a failure of justice. Thus, in the 'interest
of justice1 this Court must reverse the court of appeals denial
of Appellant's Motion To Recall Mandate.
CONCLUSIONS AND PRAYER FOR RELIEF
Appellant has shown that he had grounds to recall the
court of appeals' mandate and that the court erred in denying
his Motion To Recall Mandate which resulted in abuse of its
power.
FOR THESE REASONS: the Appellant respectfully prays
that this court will reverse the court of appeals order denying
Appellant's Motion To Recall Mandate and remand to the court to
allow Appellant to file his motion for rehearing.
Respectfully submitted,
/S/ ^CJU)JXr^ T
page 8 TDCJ-CID NO.00700661 William McConnell Unit 3001 South Emily Drive Beeville, Texas 78102
Appearing Pro se
CERTIFICATE OF SERVICE
I, LEXTER KENNON KOSSIE, do hereby certify that on
this the $6 day of //7#A.-, 2015, a true and correct copy
of the above and foregoing Petition For Discretionary Review
was sent to the State Prosecuting Attorney: P.O. BOX 12405,
Capitol Station; Austin, Texas 78711
LEXTER KENNON KOSSIE
page 9