NO. 07-95-0041-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 14, 2003

______________________________

ROBBIE NEIL FREEMAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 94-419,156; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. ^{(footnote: 1)}

ON MOTION TO RECALL MANDATE

Appellant has filed a pro se motion to recall the mandate which we had previously issued in this case.  In his motion, appellant points out that the Court of Criminal Appeals has granted him leave to file an out of time petition for discretionary review of his conviction.  We have requested a response from the State.  It has filed a response in which it posits that the Court of Criminal Appeal’s action in granting the request “trumps” the mandate of this court, but states that it does not oppose the motion.

In view of the action of the Court of Criminal Appeals, we have concluded that appellant’s motion should be granted.   See Herrin v. State, 669 S.W.2d 897 (Tex. App.–Dallas 1984, no pet.).  Accordingly, the Clerk of this Court is ordered to recall our mandate conditioned upon appellant seeking appropriate relief in the Court of Criminal Appeals and, in doing so, meets all the requirements imposed by that Court in doing so.

It is so ordered.

John T. Boyd

Senior Justice

Do not publish.

FOOTNOTES

1:

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).