Louis R. Clemons v. State

• Court: Court of Appeals of Texas
• Decided: May 22, 2018
• Docket: 01-16-00336-CR
• Status: Published

Opinion

Order issued May 22, 2018

In The Court of Appeals For The First District of Texas

NO. 01-16-00336-CR

LOUIS R. CLEMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 351st District Court Harris County, Texas Trial Court Cause No. 1396258

ORDER Appellant, Louis R. Clemons, an inmate proceeding pro se, moves to recall

this Court’s mandate, seeking to file an out-of-time motion for rehearing in this

Court and an out-of-time petition for discretionary review in the Texas Court of

Criminal Appeals. See TEX. R. APP. P. 18.7.

We deny appellant’s motion. A jury found appellant guilty of the offense of aggravated robbery. After

finding true the allegations in the enhancement paragraphs that he had twice

previously been convicted of felony offenses, the jury assessed his punishment at

confinement for 99 years. On August 17, 2017, this Court affirmed the judgment of

the trial court. Clemons v. State, No. 01-16-00336-CR, 2017 WL 3526721, at *9

(Tex. App.—Houston [1st Dist.] Aug. 17, 2017, no pet.) (mem. op., not designated

for publication). Any motion for rehearing was due by September 1, 2017. See TEX.

R. APP. P. 49.1. A petition for discretionary review, if any, was due by September

18, 2017. See TEX. R. APP. P. 68.2(a). There being no motion for rehearing or

petition for discretionary review filed, our plenary power over our judgment expired

on October 16, 2017. See TEX. R. APP. P. 19.1(a). We issued our mandate on

October 27, 2017.

Appellant asserts that he was not afforded an opportunity to timely file a

motion for rehearing in this Court or to timely file a petition for discretionary review

in the Court of Criminal Appeals because he did not receive notice of this Court’s

August 17, 2017 opinion and judgment. This Court’s records reflect that, due to an

administrative error, notice of the opinion and judgment was not sent to the parties.

Appellant, seeking to file an out-of-time motion for rehearing in this Court and an

out-of-time petition for discretionary review in the Court of Criminal Appeals,

requests that this Court withdraw its mandate.

2 We deny appellant’s request to file an out-of-time motion for rehearing.

Because this Court’s plenary power has expired, we are without jurisdiction to

vacate or modify our judgment. See TEX. R. APP. P. 19.1, 19.3.

Only the Court of Criminal Appeals may enlarge the time for filing a petition

for discretionary review. TEX. R. APP. P. 68.2(c). Consequently, the Court of

Criminal Appeals is the proper forum to grant such an extension of time. Should the

Court of Criminal Appeals grant appellant leave to file an out-of-time petition for

discretionary review, this Court will withdraw its mandate as directed by the Court

of Criminal Appeals. See Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App.

2008) (holding court of appeals not required to recall its mandate for defendant to

seek out-of-time petition for discretionary review). We decline to withdraw our

mandate at this time. See id.; see also TEX. R. APP. P. 19.3 (providing that court of

appeals “may” recall its mandate). Accordingly, the motion to withdraw the

mandate is denied.

It is so ORDERED.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

Massengale, J., concurring.

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