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.
Roberts v. State Page 2

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 3

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 4

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.”

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

appointment of counsel. In light of our opinion, we dismiss all pending motions as moot.
Roberts v. State Page 5

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Dismissed

Opinion delivered and filed August 2, 2012

Do not publish

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