                              PD-1379-15

                           IN THE COURT OF APPEALS

                    FIFTH   DISTRICT COURT OF         APPEALS

                                   AT   DALLAS
                                                                   RECEIVED IN
                                                          COURT OF CRIMINAL APPEALS
                            NO.    05-l'+-00563-CR

                                                                   DEC 28 2015

                             BILLY   JOE CAMPBELL
                                   APPELLANT                    Abel Acosta, Clerk
                                        V.
                                                                         FILED
                             THE   STATE     OF   TEXAS          COURT OF
                                     APPELLEE
                                                                       DEC 3 0 2Ct5

                                                                     Abel Acosta, Clerk
           ON   REVIEW FROM THE 416tn JUDICIAL DISTRICT COURT

                            COLLIN COUNTY, TEXAS



                MOTIOlN   FOR LEAVE TO FILE AN OUT OF TIME
                    PETITION FOR     DISCRETIONARY REVIEW

                          AND RECALL OF THE MANDATE



TO THE HONORABLE JUSTICES OF THE FIFTH JUDICIAL COURT OF APPEALS:


     COMES NOW, 3illy Joe Campbell, Appellant (Campbell) in the above styled
and enumerated Cause, by and through himself, & respectfully moves the Court

to recall the mandate, so that Campbell may request from the Court of Criminal
Appeals.,! an opportunity to review errors within the proceedings, via an out
of time Petition for Discretionary Review ever) though the deadline has passed
for filing an Original V'etition for Discretionary Review-       see TEX R App P
18.7.
                                    CONCLUSION


          jell's-Motion -to Recall the Mandate is made necessary due to administra

tive error's wnich occurred in the proceedings.     Without notice of the granting

of the extension of time to file a Motion for Rehearing, Campbell's time was

exhausted." See Tex R App P Rule 4.5(a).

     The Court nas the authority to recaj.l the mandate so long as it is done

"during the. term the mandate was issued.5'. See Hartfialdi v Thalar, .403. SW3d 234
(TCA2013);DeraiEe v State, 379 SW2d 903 (TCA1972).

     While the Court of Appeals does not have the authority to grant the out

of time PDR, this Court must grant the recall of the mandate to provide the

appellant the opportunity co file his Petition for Discretionary Review since
it was administrative errors which caused the forfeiture of the proceedings.

See Generally, Rodriguez v State, 23 SW3d 25 (Tsx App - Houston [1st DistJ 2000).
See also Horrin v State, 668 SWzd 896, 897 (Tex App - Dallas, 1934, no p?.t)(grant-
ing motion to recall the mandate because appellant did not receive notice of
opinion of the Court of Appeals.)    Tex R App P Rule 19.3.



                                                 ilespectfully-submi't ted,




                                                 TDcJ # 1927270
                                                 Lynaugh Unit
                                                 1098 S Hxy 2037
                                                 Ft Stockton/ IX     /9735
                                                 Appellant, ProseT
                         CERTIFICATE    OF   SERVICE


     I, Billy Joe Campbell, certify that a true and correct copy of the motion
for Leave to File an Out of Time Petition for Discretionary review and Recall

of the Mandate has been served upon the District Attorney of Collin county by

depositing sane in the Lynaugh Unit's mail system on this, the ( 5 day of
December, 2015.



                                              "73il]# J Campbell   ^~
                   COURT OF APPEALS NUMBER      05-14-00563-CR
                   TRIAL COURT   CASE NUMBER    416.81619-2014



BILLY J   CAMPBELL                       §      IN THE FIFTH DISTRICT COURT
                                         §
V.                                       §      OF APPEALS AT DALLAS
                                         §
THE STATE OF TEXAS                       §      5th JUDICIAL DISTRICT


                   AFFIDAVIT   IN SUPPORT OF LEAVE TO FILE


STATE OF TEXAS

COUNTY OF PECOS

     "I, Billy J Campbell, am over the age of 18, of sound mind, and personally
acquainted with the facts stated herein.     These facts are true and correct.

     I received a letter from Angela D'Amore, my appellate attorney, on or about

August 19, 2015.

     In her letter, she tells me that I may file a motion for rehearing & PDR

if I wanted.    Problem is, she did not tell me that I had to, file a Motion for

Rehearing by a date certain, and for me to "assume" that the Court would grant
her Motion to extend time to file a motion for rehearing.     This failure by

D'Amore, caused the proceedings to go off track, prompting this additional doc

ument filing.

     I was unaware of the importance of.     D'Amore's letter is part of the prior
motion to recall the mandate so that I could file a motion for rehearing.

     I did not recive any response to my inquiry to D'Amore if the motion re
questing an extension of time was granted, nor did I receive any notice from
the Clerk of the Court that the motion had been granted-     Missing this information

I was deprived of knowing what to do."

     "I, Billy Joe Campbell, # 1927270, am presently incarcerated at the Lynaugh
Unit of the TDCj in Pecos County, Texas.     I declare under penalty of perjury,
December 14, 2015



Clerk of the Court
Court of Appeals
Fifth District of Texas at Dallas
600 Commerce Street, Ste 200
Dallas, TX 75202

RE:   Billy J Campbell v State of Texas
      Court of Appeals # 05-14-00563-CR
      Trial Court Case No. 416.81619-2012


Dear Clerk:


      Please find enclosed my Motion for Leave to file an Out of Time Petition

for Discretionary Review and Recall of the mandate along with a support affidavit

for same.


      Would you please file this in the matter, and bring this to the Courts att

ention for its ruling?        I would greatly appreciate that.

      Merry Christmas to you and your family!

Respectfully,



  Lly J Campbell
TDCJ # 1927270
Lynaugh Unit
1098 S Hwy 2037
Ft Stockton, TX     79735


cc:   Ms Sarah Preston
      Asst District Attorney
      2100 Bloomdale Road'I ste 100
      McKinney, TX    75071
