in Re Richard Ray Reyes, Sr.

IN THE TENTH COURT OF APPEALS No. 10-05-00234-CR In re Richard Ray Reyes, Sr. Original Proceeding DISSENTING Opinion For the reasons set out in my dissenting opinion dated May 11, 2005 in Reyes v. State, No. 10-05-00087-CR, 2005 Tex. App. LEXIS 2265 (Tex. App.—Waco, March 23, 2005, no pet. h.) (Gray, C.J., dissenting, May 11, 2005), I dissent to the Memorandum Opinion in this proceeding. The Court of Criminal Appeals has returned the document that we forwarded to it which we received after we issued our earlier opinion. See Reyes v. State, No. 10-05-00087-CR, 2005 Tex. App. LEXIS 2265 (Tex. App.—Waco, March 23, 2005, no pet. h.) (Vance, J., concurring, May 11, 2005) (regarding forwarding the documents to the Court of Criminal Appeals as a Petition for Discretionary Review). The Court of Criminal Appeals indicated they had determined the document to be a petition for writ of mandamus. Upon its return, the majority split the document and filed two mandamus proceedings, In re Reyes, 10-05-00234-CR (this proceeding) and In re Reyes, No. 10-05-00246-CV, 2005 Tex. App. LEXIS 4854 (Tex. App.—Waco, June 22, 2005, orig. proceeding). I believe the self-crafted document filed in this proceeding labeled Petition for Writ of Corum Nobis is actually a motion for rehearing applicable to Reyes v. State. Reyes v. State, No. 10-05-00087-CR, 2005 Tex. App. LEXIS 2265 (Tex. App.—Waco, March 23, 2005, no pet. h.) (Gray, C.J., dissenting, May 11, 2005). While the Court of Criminal Appeals characterized the document forwarded to it as a petition for writ of mandamus, maybe the Court of Criminal Appeals and I are looking at two different parts of the document received from Reyes for filing at the same time. See Reyes v. State, No. 10-05-00087-CR, 2005 Tex. App. LEXIS 2265, *11, fn 1 (Tex. App.—Waco, March 23, 2005, no pet. h.) (Gray, C.J. dissenting, May 11, 2005). The majority has disposed of the other document as a petition for writ of mandamus as the Court of Criminal Appeals had also characterized it. See In re Reyes, No. 10-05-00246-CV, 2005 Tex. App. LEXIS 4854 (Tex. App.—Waco, June 22, 2005, orig. proceeding). Now, however, in its opinion, the majority has changed the characterization of the document filed in this proceeding from a writ of mandamus, as we had notified Reyes when it was returned, split, and filed, to a writ of habeas corpus, upon the basis that a petition for writ of corum nobis has previously been held to be a petition for writ of habeas corpus. Majority Op., pg. 1, citing Martinez v. State, 419 S.W.2d 369 (Tex. Crim. App. 1967). We should do what the Court of Criminal Appeals did in Martinez and look at the substance of the pleading and decide the issue, including sometimes, what the document itself is. In this case, it appears that this is a motion for rehearing of Reyes’s original appeal which we dismissed. See Reyes v. State, No. 10-05-00087-CR, 2005 Tex. App. LEXIS 2265 (Tex. App.—Waco, March 23, 2005, no pet. h.). Thus, this part of the document, assuming it was proper to separate it from the petition for writ of mandamus, is a motion for rehearing. I would grant the rehearing and correct the designation so that the original appeal is designated as a civil appeal, not a criminal appeal, and proceed from there to address the merits or otherwise properly dispose of that civil appeal. See id., (Gray, C.J., dissenting, May 11, 2005). It is almost humorous to note that the last paragraph of the opinion is necessary only if this is designated a civil proceeding. That is what I contend it is. If it is a criminal proceeding, as the majority has maintained that it is, the last paragraph has no place in this proceeding. I dissent. TOM GRAY Chief Justice Dissenting opinion delivered and filed July 13, 2005 Publish delivered and filed May 29, 2002 Publish