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

                                                          Page




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<iM^cy
                                     LEXTER      KENNON   KOSSIE

                                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
