Opinion
Appellate case number: 01-14-00121-CR
05-25-2017
Paul Briones v. The State of Texas
MEMORANDUM ORDER Trial court case number: 1268863 Trial court: 178th District Court of Harris County
On February 24, 2017, the Court issued the mandate in the above-referenced cause. On April 6, 2017, appellant filed a motion to recall the mandate in order to seek leave to file an out-of-time petition for discretionary review in the Texas Court of Criminal Appeals. See Rodriguez v. State, 28 S.W.3d 25, 27 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Appellant's petition for discretionary review was due on November 27, 2016, or 30 days after this Court denied his motion for rehearing. See TEX. R. APP. P. 68.2(a). Appellant asserts that he missed the deadline because "his attorney did not provide him with notice of the rehearing denial nor the steps needed to be made to preserve his right to request review by the Court of Criminal Appeals." Appellant requests that he be granted leave to proceed to the Court of Criminal Appeals to file an out-of-time petition for discretionary review.
We are without authority to grant appellant additional time to file a petition for discretionary review. The Court of Criminal Appeals, and not this Court, may enlarge the time for filing a petition for discretionary review. See TEX. R. APP. P. 68.2(c). Thus, the Court of Criminal Appeals is the proper forum to grant any such extension of time.
We conditionally grant the motion to recall our mandate. See Rodriguez, 28 S.W.3d at 27 (granting motion to recall mandate where defendant did not receive notice of ruling on motion for rehearing); Herrin v. State, 668 S.W.2d 896, 897 (Tex. App.—Dallas 1984, no pet.) (granting motion to recall mandate where defendant did not receive notice of opinion of court of appeals); see also TEX. R. APP. P. 19.3(b) ("[A]fter its plenary power expires, the court . . . may . . . issue and recall its mandate as these rules provide."). The Clerk of this Court is ordered to recall the Court's February 24, 2017 mandate on the condition that appellant seek relief in the Court of Criminal Appeals not later than 30 days from the date of this order. It is further ordered that the Clerk of this Court instruct the clerk of the trial court to immediately return the recalled mandate to the Clerk of this Court. See TEX. R. APP. P. 18.7.
It is so ORDERED. Judge's signature: /s/ Terry Jennings
[ ] Acting individually [v] Acting for the Court Panel consists of: Justices Jennings, Massengale and Huddle Date: May 25, 2017