Concurring statement 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

                         CONCURRING STATEMENT

      I concur in the court’s ruling, denying appellant Louis R. Clemons’s motion

to recall and reissue our mandate. The requested relief would not have the effect of

reinstating our plenary power over the appeal, nor would it trigger a new opportunity

for Clemons to file petition for discretionary review, as his motion suggests. See
TEX. R. APP. P. 19.1 (expiration of plenary power of court of appeals); TEX. R. APP.

P. 68.2 (time to file PDR). Rather, as the court’s order correctly suggests, the

appropriate procedure is for Clemons to file a post-conviction application for a writ

of habeas corpus in the trial court. See TEX. CODE CRIM. PROC. art. 11.07; Ex parte

Valdez, 489 S.W.3d 462, 465 (Tex. Crim. App. 2016); Rodriguez v. Court of

Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558–59 & n.3 (Tex. Crim.

App. 1989).

      I respectfully suggest to future reviewing courts that if Clemons applies for

permission to file an out-of-time petition for discretionary review, such relief should

be granted in light of our court’s confession of administrative errors that,

unfortunately, significantly impaired his opportunity and ability to exercise his

postjudgment procedural rights to seek rehearing in the court of appeals and

discretionary review in the Court of Criminal Appeals. See TEX. R. APP. P. 48.1,

48.4; see also Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006) (in

circumstances of “a breakdown in the system” impairing applicant’s right to exercise

the statutory right to file a PDR, granting permission to file out-of-time PDR without

a determination that counsel rendered ineffective assistance).




                                              Michael Massengale
                                              Justice
                                          2
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

Justice Massengale, concurring in the denial of the motion.

Do not publish.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




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