in Re: Leviyas J. Clayton

NUMBER 13-07-513-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ IN RE LEVIYAS JAMAIL CLAYTON ____________________________________________________________ On Petition for Writ of Mandamus ____________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Per Curiam Memorandum Opinion (1) Relator, Leviyas Jamail Clayton, pro se, filed a petition for writ of mandamus in the above cause on August 20, 2007. Relator contends that he is being illegally incarcerated and asks this Court to compel his release. We deny the petition for writ of mandamus. Relator was convicted of murder and sentenced to thirty years' imprisonment. See Clayton v. State, 169 S.W.3d 254, 255 (Tex. App.-Corpus Christi 2005, pet. granted). This Court reversed his conviction and ordered a judgment of acquittal. See id. at 258. The court of criminal appeals has granted the State's petition for discretionary review. Through this original proceeding, relator contends that Texas Rule of Appellate Procedure 51.2(d) compels his immediate release from prison. See Tex. R. App. P. 51.2(d). Rule 51.2(d) provides that "When the appellate court reverses a judgment and orders the defendant's acquittal, the defendant-if in custody-must be discharged, and no further order or judgment of the trial court is necessary." See id. Rule 51.2(d) must be read in conjunction with the code of criminal procedure. Under article 44.04(h): If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review. If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail. If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail. The sureties on the bail must be approved by the court where the trial was had. The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals' final ruling as defined by Tex. Cr. App. R. 209(c). Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon 2006). Accordingly, to the extent that relator is seeking release from imprisonment pending the resolution of his appeal, relator would be required to request bail from the court of criminal appeals. See id. The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED. See Tex. R. App. P. 52.8(a). Any pending motions are denied as moot. PER CURIAM Do not publish. See Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 11th day of September, 2007. 1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).