Lexter Kennon Kossie #700661

William McConnell Unit

3001 South Emily Drive

Beeville, Texas 78102

COUHTOFCRONALAPPEALS

March 23, 2015 MAR 27 2015

AMAco§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,

^tjiilK^ ffohjua: £M

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

Mike Anderson

Presiding Judge in the 185th

District Court

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 filpage 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 depage 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