                                       IN THE
                               TENTH COURT OF APPEALS

                                        No. 10-12-00075-CR

ANDREW ROBERTS, JR.,
                                                                         Appellant
v.

THE STATE OF TEXAS,
                                                                         Appellee



                                 From the 54th District Court
                                  McLennan County, Texas
                                  Trial Court No. 2002-979-C


                                MEMORANDUM OPINION

        Appellant, Andrew Roberts Jr., complains about the trial court’s denial of his

“Out of Time Motion for New Trial,” which was filed on February 9, 2012. In this

motion, appellant challenged his July 23, 2003 conviction for aggravated robbery,

asserting a claim of actual innocence based on newly discovered evidence—namely, an

allegation that one of the witnesses at trial, Rodrigo Barnes, gave perjured testimony.1



        1 This is not the first time appellant has attempted to challenge his 2003 conviction. See Roberts v.
State, No. 10-03-00260-CR, 2004 Tex. App. LEXIS 9550 (Tex. App.—Waco Oct. 27, 2004) (mem. op., not
designated for publication), aff’d, 221 S.W.3d 659 (Tex. Crim. App. 2007). Furthermore, appellant has not
indicated that he has filed a petition for the writ of habeas corpus in the Texas Court of Criminal Appeals.
        On June 26, 2012, this Court sent appellant a letter questioning our jurisdiction.

In our letter, we noted the following:

                Also included in the file in this case is a copy of appellant’s “Out of
        Time Motion for a New Trial.” In that motion, appellant, relying on a case
        that has since been overruled, states that “[p]ost-conviction habeas corpus
        relief is not an appropriate remedy for an applicant whose claim for relief
        is based on newly discovered evidence.” Ex parte Binder, 660 S.W.2d 103,
        106 (Tex. Crim. App. 1983), overruled by State ex rel. Holmes v. Court of
        Appeals, 885 S.W.2d 389, 396-98 (Tex. Crim. App. 1994). Texas courts have
        held that “[c]laims of actual innocence based on newly discovered
        evidence are cognizable on post-conviction writs of habeas corpus.” Ex
        parte Mello, 355 S.W.3d 827, 830 (Tex. App.—Fort Worth 2011, pet. ref’d)
        (citing Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006); Ex parte
        Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996)). In fact, Texas
        recognizes two type of “innocence claims”: a substantive claim—a Herrera
        claim—in which the person asserts a “bare claim of innocence” based
        solely on newly discovered evidence and a Schlup claim, which is a claim
        that “does not by itself provide a basis for relief,” but is intertwined with
        constitutional error that renders a person’s conviction constitutionally
        invalid. Ex parte Brown, 205 S.W.3d at 544-45 (citing Ex parte Tuley, 109
        S.W.3d 388, 390 (Tex. Crim. App. 2002); Schlup v. Delo, 513 U.S. 298, 314-15,
        115 S. Ct. 851, 860-61, 130 L. Ed. 808 (1995)); see Herrera v. Collins, 506 U.S.
        390, 113 S. Ct. 853, 122 L. Ed. 203 (1993).

                Moreover, the Texas Court of Criminal Appeals has held that the
        exclusive post-conviction remedy in final felony convictions in Texas
        courts is through a petition for writ of habeas corpus filed pursuant to
        article 11.07 of the code of criminal procedure. See TEX. CODE CRIM. PROC.
        ANN. art. 11.07 (West Supp. 2011); see Olivo v. State, 918 S.W.2d 519, 528 n.8
        (Tex. Crim. App. 1996). And furthermore, only the Texas Court of
        Criminal Appeals has jurisdiction over post-conviction writs of habeas
        corpus in felony cases. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241,
        243 (Tex. Crim. App. 1991); see Bd. of Pardons & Paroles ex rel. Keene v. Court
        of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).

               Because appellant brings a Herrera claim of actual innocence based
        on newly discovered evidence, and because his felony conviction for
        aggravated robbery is final, it appears as if appellant’s complaints should
        be brought in a petition for writ of habeas corpus directed at the Texas
        Court of Criminal Appeals, rather than a direct appeal filed in this Court.
        See Ex parte Brown, 205 S.W.3d at 544-45; see also Ex parte Mello, 355 S.W.3d

Roberts v. State                                                                           Page 2
        at 830. And as such, we question whether we have jurisdiction over
        appellant’s direct appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07; see
        also Olivo, 918 S.W.2d at 528 n.8; Bd. of Pardons & Paroles ex rel. Keene, 910
        S.W.2d at 483; Ater, 802 S.W.2d at 243.

              Appellant is thus notified that this case is subject to dismissal
        because we appear to lack jurisdiction to consider this appeal.

              Therefore, the Court will dismiss the appeal unless, within 21 days
        from the date of the letter, a response is filed showing grounds for
        continuing the appeal.

        On July 18, 2012, appellant responded to our June 26, 2012 letter. In his response,

appellant asserts, without evidentiary support, that we have jurisdiction over this

matter because there is “good cause” to suspend all applicable rules based on his

allegation that he was not appointed counsel “until over 30 days after sentencing.”

Further, in support of this contention, appellant relies heavily on the San Antonio Court

of Appeals’ decision in Tuffiash v. State, 878 S.W.2d 197, 200 (Tex. App.—San Antonio

1994, pet. ref’d) (granting appellant’s motion to abate appeal and remand to the trial

court to file an out of time motion for new trial based on newly discovered evidence

where appellant demonstrated that one of the State’s witnesses had committed perjury).

        We find appellant’s reliance on Tuffiash to be misplaced. Notwithstanding the

fact that Tuffiash is not binding authority on this Court, we note that, at the outset of

their analysis in Tuffiash, the San Antonio Court of Appeals analyzed “whether the issue

sought to be resolved can serve as a basis for post-conviction habeas corpus relief.” Id.

at 199. In concluding that “it is not clear whether appellant would be able to obtain

post-conviction habeas corpus relief if the allegations contained within his motion were

proven true,” the Tuffiash court relied on Ex parte Binder, a case which has since been

Roberts v. State                                                                         Page 3
overruled, and acknowledged that “[w]hen knowledge of perjurious testimony can be

imputed to the prosecution, however, perjury may form the basis of post-conviction

habeas corpus relief.” Id. (citing Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989);

Ex parte Binder, 660 S.W.2d 103 (Tex. Crim. App. 1983)). And, since Tuffiash, the Texas

Court of Criminal Appeals has explicitly held that “[c]laims of actual innocence based

on newly discovered evidence are cognizable on post-conviction writs of habeas

corpus.” Ex parte Mello, 355 S.W.3d at 830. Therefore, in light of the foregoing, we do

not find Tuffiash to be persuasive in this matter.

        As stated in our June 26, 2012 letter, the claims contained in appellant’s “Out of

Time Motion for New Trial” are essentially Herrera claims of actual innocence based on

newly discovered evidence, which are “cognizable on post-conviction writs of habeas

corpus.” See Ex parte Brown, 205 S.W.3d at 544-45 (citing Herrera, 506 U.S. at 390, 113 S.

Ct. at 853); see also Ex parte Mello, 355 S.W.3d at 830. And because the Texas Court of

Criminal Appeals has jurisdiction over post-conviction writs of habeas corpus in felony

cases, we lack jurisdiction over this matter.2 See TEX. CODE CRIM. PROC. ANN. art. 11.07;

Olivo, 918 S.W.3d at 528 n.8; Bd. of Pardons & Paroles ex rel. Keene, 910 S.W.2d at 483; Ater,

802 S.W.2d at 243. Accordingly, we dismiss this appeal for want of jurisdiction.3




        2 We also note that appellant has not demonstrated that the trial court certified his right to appeal
the ruling on his “Out of Time Motion for New Trial.”

        Appellant has also filed a motion for extension of time to file the record and a motion for
        3

appointment of counsel. In light of our opinion, we dismiss all pending motions as moot.

Roberts v. State                                                                                      Page 4
                                             AL SCOGGINS
                                             Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Dismissed
Opinion delivered and filed August 2, 2012
Do not publish
[CR25]




Roberts v. State                                           Page 5
