Blankenship, Jeffrey Dwayne

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,001-02

Ex Parte JEFFREY DWAYNE BLANKENSHIP, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 4839-C IN THE 271st DISTRICT COURT
FROM JACK COUNTY

KELLER , P.J., filed a dissenting opinion in which Keel, J., joined.

DISSENTING OPINION

The Court says that the trial court had no authority to set aside Applicant’s conviction while

his case was on appeal. I agree that if the case had still been in the appellate court, the trial court

would have erred to act as it did. But here, on motion of the parties, the court of appeals had at least

purported to abate the appeal and remand the case to the trial court to consider a new proposed plea

bargain that imposed the same fifty-five year sentence but conferred other benefits on Applicant.

If the court of appeals had authority to remand the case for that purpose, then jurisdiction was

returned to the trial court, and the trial did not err.
BLANKENSHIP DISSENT — 2

There may be some question, though, about whether the court of appeals had the authority

to remand for that purpose. After all, doing so effectively circumvented the deadline for a motion

for new trial. But there was no petition for discretionary review, so the parties have forfeited any

right to complain about the remand which they both sought. The only remaining question is whether

what the court of appeals did is non-forfeitable error.

Applicant makes various claims in this writ application, but the record does not support his

claims, and the habeas court recommends that we deny relief. Given the equities, including the lack

of merit to his claims and the agreement by all involved with the process employed here, I would

deny relief. But if the Court wants to consider granting relief that no one has asked it to do, we

should first obtain briefing from the parties on whether the trial court’s action in setting aside the

original conviction was in fact void.

I respectfully dissent.

Filed: March 29, 2023

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