Campbell, Billy Joe ( 2015 )

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 S.W.2d 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 S.W.3d 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