Motion for Leave Denied as Moot; Agreed Motion to File Records Under Seal
Granted; Petition for Writ of Mandamus Denied, and Memorandum Opinion filed
November 9, 2012.




                                                In The

                          Fourteenth Court of Appeals

                                         NO. 14-12-00936-CR



                          IN RE DAVID MARK TEMPLE, Relator

                                ORIGINAL PROCEEDING
                                  WRIT OF MANDAMUS
                           On Appeal from the 178th District Court
                                    Harris County, Texas
                               Trial Court Cause No. 1008763
                                MEMORANDUM OPINION

        Relator David Mark Temple filed a petition for writ of mandamus in this court.1
See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 52. In the petition, relator asks
this court to compel the Honorable David Mendoza, presiding judge of the 178th District
Court of Harris County, to conduct a hearing on relator’s out-of-time motion for new trial
or alternative application for writ of habeas corpus.


        1
          Relator also filed a motion for leave to file his petition for writ of mandamus. Texas Rule of
Appellate Procedure 71.2, which requires a motion for leave to file a petition for writ of mandamus,
applies only to petitions filed at the Texas Court of Criminal Appeals. A motion for leave is not required
in an intermediate appellate court. See Tex. R. App. P. 52. Accordingly, we deny the motion for leave as
moot.
       A jury convicted relator of the murder of his wife, and he was sentenced to life in
prison in 2007. This court affirmed relator’s conviction, and the Texas Court of Criminal
Appeals granted his petition for discretionary review. See Temple v. State, 342 S.W.3d
572 (Tex. App.—Houston [14th Dist.] 2010, pet. granted Jan. 11, 2012). His direct
appeal remains pending at the Texas Court of Criminal Appeals. See Temple v. State, No.
PD-0888-11 (Tex. Crim. App.) (argued June 20, 2012).

       On September 20, 2012, relator filed in the trial court an out-of-time motion for
new trial or alternative application for writ of habeas corpus. Relator raised three issues
in the motion: (1) he is entitled to a new trial based on newly discovered evidence
material to his defense that was discovered since his trial; (2) he was denied due process
based on the State’s willful and deliberate suppression of exculpatory material; and (3) he
has established by clear and convincing evidence that he is actually innocent of the
murder of his wife, and that no rational jury would convict him in light of the newly
discovered evidence, the suppressed exculpatory evidence, and the record at trial. See
generally Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) (holding that
a claim of actual innocence is cognizable in a post-conviction habeas proceeding,
concluding that incarceration of an innocent person violates the Due Process Clause of
the Fourteenth Amendment).

       On October 1, 2012, the trial court dismissed relator’s motion without prejudice
and refused to issue a writ pursuant to relator’s alternative habeas application, stating that
the court lacked jurisdiction to hear the motion and alternative writ application.2 Relator
asserts in this proceeding that the trial court has jurisdiction to hear his motion or
alternative writ application. He argues that a remedy must be available for situations such
as his where new material evidence is discovered while a direct appeal is pending,
asserting that an innocent man should not have to wait in prison until his appeal is final,
particularly when the State has unclean hands.

       2
          The trial court also ordered the attachments to the pleadings sealed. Relator filed an agreed
motion asking this court to file these documents under seal because of an ongoing investigation by a
Special Prosecutor and to protect the identity of a witness who recently came forward with new evidence.
We grant the motion.
                                                   2
       Relator asserts that his due process rights have been violated by the prosecutor’s
deliberate suppression of favorable evidence, and that newly discovered evidence of
another person’s guilt requires the granting of a new trial and consideration of relator’s
claim of actual innocence. A claimed deprivation of constitutional rights cannot confer
jurisdiction upon a court where none exists anymore than parties can agree to confer
jurisdiction upon a court. Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987).

       A defendant may file a motion for new trial before, but not later than thirty days
after, the date sentence is imposed. Tex. R. App. P. 21.4(a). An appellate court may not
extend the time period for filing a motion for new trial for “good cause” under Rule 2.
Oldham v. State, 977 S.W.2d 354, 356 (Tex. Crim. App. 1998). Because the right to
move for a new trial is a creature of statutory law, not common law, the trial court cannot
act upon a motion for new trial that has not been “pursued in the manner prescribed by
statute.” Drew, 743 S.W.2d at 223 (holding trial court lacked jurisdiction to consider
motion for new trial alleging newly discovered evidence filed seventy-one days after the
filing deadline). When the statutory timetable is not followed, the trial court lacks
jurisdiction to rule on the motion. State v. Holloway, 360 S.W.3d 480, 486 (Tex. Crim.
App. 2012); see also Act eff, Sept. 1 1981, 67th Leg., ch. 291, § 108 (amending former
Article 40.05 of the Texas Code of Criminal Procedure, enlarging the time to file a
motion for new trial to thirty days, but removing the court’s power to grant an extension
of time to file the motion after the statutory deadline).

       Generally, the trial court’s jurisdiction over the case and the defendant extends to
the time at which the record is filed in the appellate court. See State v. Moore, 225
S.W.3d 556, 568 (Tex. Crim. App. 2007); Tex. R. App. P. 25.2(g) (“[o]nce the record has
been filed in the appellate court, all further proceedings in the trial court—except as
provided otherwise by law or by these rules—will be suspended until the trial court
receives the appellate-court mandate.”). Because that time period has long passed, relator
must establish another basis for the trial court’s jurisdiction to consider his claim of
actual innocence.


                                               3
        Relator cites article 40.001 of the Texas Code of Criminal Procedure as the basis
for the trial court’s jurisdiction to hear his out-of-time motion for new trial. Relator
asserts that article 40.001 “provides a remedy without a process.” Article 40.001 simply
provides: “A new trial shall be granted an accused where material evidence favorable to
the accused has been discovered since trial.” Tex. Code Crim. Proc. art. 40.001. The
article does not address the timing of the request for a new trial or the procedure to
follow.

        Before the Texas Court of Criminal Appeals was granted rule-making authority,3
the procedures governing motions for new trial were included in Chapter 40 of the Texas
Code of Criminal Procedure. Chapter 40 was replaced by the enactment of the Texas
Rules of Appellate Procedure in 1986, specifically former Rules 30-36. See Act eff. Sept.
1, 1986, 69th Leg., ch. 685, § 4 (repealing Articles 40.01 to 40.11). The provision for
granting a new trial on newly discovered evidence, now found in Article 40.001 of the
Texas Code of Criminal Procedure, had been enacted as Rule 30 in the 1986 Texas Rules
of Appellate Procedure. See Moore, 225 S.W.3d at 565-66 (discussing the history of the
procedural rules for motions for new trial). Rule 30 formerly provided in part that a new
trial shall be granted “[w]here new evidence favorable to the accused has been discovered
since trial[.]” The legislature disapproved of this provision, limiting the Court of Criminal
Appeals’ rule-making authority with regard to new trials based on newly discovered
evidence, and enacted Article 40.001 of the Code of Criminal Procedure. See Act eff.
Sept. 1, 1993, 73rd Leg., ch. 900 §§ 11.01, 11.02 (limiting trial court’s ability to grant
new trial on ground of new evidence to “material” evidence); see also Comment to Tex.
R. App. P. 21 (governing new trials in criminal cases).4

        Therefore, after considering the procedural history of Article 40.001, we reject
relator’s contention that Article 40.001 permits the filing of an out-of time motion for
        3
          The legislature granted the Texas Court of Criminal Appeals rule-making authority in matters of
procedure in post-trial, appellate, and discretionary review of criminal cases, “except that its rules may
not abridge, enlarge, or modify the substantive rights of a litigant.” See Act eff. Aug. 26, 1985, 69th Leg.,
ch. 685, p. 2472, § 1.
        4
        The Rules of Appellate Procedure were revised and renumbered effective September 1, 1997.
Former Rules 30-36 are now merged into Rules 21-23 of the Texas Rules of Appellate Procedure.
                                                     4
new trial directly with the trial court. We conclude that Article 40.001 does not provide a
jurisdictional basis for the trial court to consider relator’s out-of-time motion for new
trial.

         We now consider whether the trial court has jurisdiction to hear relator’s
alternative application for writ of habeas corpus. Chapter 11 of the Texas Code of
Criminal Procedure addresses habeas corpus proceedings. The jurisdiction of a court to
consider an application for writ of habeas corpus is determined at the time the application
is filed. Kniatt v. State, 206 S.W.3d 657, 663 (Tex. Crim. App. 2006). Relator
acknowledges that he cannot presently proceed pursuant to Article 11.07 of the Texas
Code of Criminal Procedure, which governs post-conviction applications for writ of
habeas corpus, because his conviction is not final. See Tex. Code Crim. Proc. art. 11.07
(establishing the procedures for applications for writ of habeas corpus seeking relief from
final felony convictions imposing penalty other than death).

         Relator asserts that Articles 11.05, 11.08, and 11.10 provide a procedure for the
trial court to consider his alternative writ application. Article 11.05 simply provides that
the Texas Court of Criminal Appeals, district courts, county courts, and judges of those
courts have the power to issue a writ of habeas corpus, and upon proper motion, the duty
to grant the writ “under the rules prescribed by law.” Tex. Code Crim. Proc. art. 11.05.
Article 11.08 provides in relevant part: “If a person is confined after indictment on a
charge of a felony, he may apply to the judge of the court in which he is indicted . . . .”
Tex. Code Crim. Proc. art. 11.08. By referring to confinement after indictment, the
language of this provision indicates it is addressing pre-conviction writs. See generally
Kniatt, 206 S.W.3d at 659 (stating that “appellant filed a pre-conviction application for
writ of habeas corpus, pursuant to Article 11.08 of the Texas Code of Criminal
Procedure.”). Article 11.10 addresses the procedure to issue the writ returnable at a
specified place in the county of the offense. Tex. Code Crim. Proc. art. 11.10. None of
these provisions address a court’s jurisdiction to hear an application for writ of habeas
corpus after conviction, but before the conviction is final.


                                              5
       In contrast, Section 5 of Article 11.07 states: “After conviction, the procedure
outlined in this Act shall be exclusive and any other proceeding shall be void and of no
force and effect in discharging the prisoner.” (emphasis supplied). Because Article 11.07,
governing post-conviction writs, expressly states that it provides the exclusive procedure
to challenge a conviction, we reject relator’s arguments that other provisions in Chapter
11 grant jurisdiction to the trial court to consider his alternative writ application.

       For a writ of mandamus to issue in a criminal case, a relator must show that he has
no adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S .W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding). The second prong of this test is satisfied if the relator
shows that he has a clear right to the relief sought — that is, when the facts and
circumstances dictate but one rational decision under unequivocal, well-settled, and
clearly controlling legal principles. Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim.
App. 2011).

       Relator has not established that he has a clear right to the relief sought.
Accordingly, we are compelled to deny relator’s petition for writ of mandamus.



                                        PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                               6
