Full opinion text
OPINION ON RELATORS’ APPLICATION FOR WRIT OF MANDAMUS BAIRD, Judge. Relators, Hams County District Attorney John B. Holmes and the Texas Board of Pardons and Paroles by and through the Attorney General, seek a writ of mandamus and/or prohibition directing respondent, the Third Court of Appeals, to withdraw its order enjoining the execution of death row inmate Gary Graham. We will conditionally grant relief. I. A recitation of the procedural history of this case is in order. Graham was convicted of capital murder in the 182nd District Court of Harris County. Tex.Penal Code Ann. § 19.03(a)(2). We affirmed. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). We denied Graham’s first application for writ of habeas corpus, Ex parte Graham (Tex.Cr.App. No. 17,568-01, delivered February 19, 1988) (not published), and Graham unsuccessfully petitioned the federal courts for relief. Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc); and, Graham v. Collins, — U.S. —, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). Although we ultimately denied Graham’s second writ application, we stayed his execution pending the resolution of Johnson v. Texas, — U.S.—, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993); and, Ex parte Graham, 853 S.W.2d 565 (Tex.Cr.App.1993). Our stay expired by its own terms and the Supreme Court denied certiorari. Graham v. Texas, —U.S. —, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993). The Texas Board of Pardon and Paroles, hereafter the Board, denied Graham’s first request for executive clemency and Governor Richards granted Graham a thirty day reprieve. Graham requested executive clemency a second time but the Board did not act on that request because of our aforementioned stay of Graham’s execution. Graham, 853 S.W.2d at 567. Upon expiration of our stay, the judge of the 182nd District Court ordered Graham’s execution before sunrise on August 17, 1993. On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County seeking an order compelling the Board to hold a hearing on his request for clemency. Graham contended art. I, §§ 13 and 19, and art. IV, § 11 of the Texas Constitution required a hearing. The judge of the 299th District Court agreed and entered a temporary injunction requiring the Board to hold a hearing on or before August 10, 1993, or to reschedule Graham’s execution until such a hearing could be held. On August 10, 1993, the Board filed notice of appeal to respondent, Third Court of Appeals. On Graham’s motion, respondent entered a writ of injunction enjoining relators from proceeding with the execution. Writ of Injunction, pg. 2. Respondent held the injunction was necessary to preserve its jurisdiction over the appeal. The Board filed a motion for leave to file original applications for writ of prohibition and mandamus in this Court requesting that we vacate the injunction, prohibit respondent from taking further action and address Graham’s claims. Relator Holmes filed a motion for leave to file petition for writ of mandamus and request for emergency stay requesting that we vacate respondent’s injunction. On August 16, 1993, we denied leave to file but, on our own motion, stayed Graham’s execution. State ex rel. Holmes v. Third Court of App., 860 S.W.2d 873 (Tex.Cr.App.1993). On November 9, 1993, we re-considered each motion, granted leave to file and consolidated the motions. The contentions before us are: 1. Whether respondent’s order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court’s original jurisdictional authority over Graham’s case; 2. Whether respondent’s order violates the original jurisdiction of this Court under art. V, § 5 of the Texas Constitution; 3. Whether respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham’s execution; 4. Whether Graham has failed to present his complaint to the trial court by means of exclusive post conviction habeas corpus remedy set forth within Tex.Code Crim.Proc.Ann. art. 11.07; and, 5. Whether this Court should assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham. We will address contentions one, two, and, three in part II of this opinion; contention four in parts III, IV, and V; and, contention five in part VI. II. A. Mandamus Our power to issue writs of mandamus is derived from art. V, § 5 of the Texas Constitution and Tex.Code Crim.Proc.Ann. art. 4.04. Mandamus is an extraordinary remedy to be invoked sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). To be entitled to a writ of mandamus, the relator must demonstrate: 1) the act sought to be compelled is purely ministerial (as opposed to discretionary); and, 2) the relator has no other adequate remedy. Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991). See, State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990); Collins v. Kegans, 802 S.W.2d 702 (Tex.Cr.App.1991); and, Steames v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989). B. Criminal Law Matter Our mandamus power is limited to “criminal law matters.” Tex. Const, art. V, § 5. See, n. 5, supra. See also, Dickens v. Court of Appeals, 727 S.W.2d 542, 545 (Tex.Cr.App.1987). Therefore, the threshold issue is whether respondent’s injunction is a criminal law matter. While no rale precisely defines the limits of a criminal law matter, we enunciated a general rule in Curry v. Wilson, 853 S.W.2d 40 (Tex.Cr.App.1993). Curry was acquitted in his criminal trial. After the trial, Wilson, the trial judge, believing Curry was no longer indigent, sought to recoup the legal fees incurred by Tarrant County for Curry’s representation. See, Tex.Code Crim.Proc.Ann. art. 26.05(e). Curry sought a writ of prohibition to prevent the recoupment. Wilson challenged our jurisdiction to hear the case, contending it was not a criminal law matter. Id., at 43. We explained that criminal law matters are those: ... Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution... . Id. We noted respondent’s authority to order recoupment arose from the Code of Criminal Procedure. Id. We further observed that the legal services were incurred in the course of Curry’s criminal trial. Id. We concluded the “dispute [was] a criminal law matter and this Court [had] jurisdiction to hear the case and determine whether a writ of prohibition should issue.” Id. Similarly, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App.1993), we considered whether a former judge may preside at a criminal trial over the State’s objection. Lanford, who had resigned as a district judge, was assigned to sit as a visiting “former judge.” Tex.Gov’t Code Ann. § 74.054. Lanford, 847 S.W.2d at 583. The State’s objection to Lanford’s assignment was overruled. Id. The State then sought and received a writ of mandamus from the Fourteenth Court of Appeals ordering Lanford to not preside in a criminal case over the State’s objection. Id. Lanford sought a writ of mandamus from this Court ordering the Court of Appeals to rescind its writ of mandamus. Id., at 584. The State contended we lacked jurisdiction to decide the matter because “[t]he orderly assignment of judges [was] a concern which [was] peculiarly within the province of the Texas Supreme Court,” i.e., a civil law matter. Id. In addressing the jurisdiction issue, we noted that the primary goal in interpreting constitutional provisions was to “ascertain and give effect to the apparent intent of the voters who adopted it.” Lanford, 847 S.W.2d at 585 (citing Edgewood I.S.D. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989); and, Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 265 (1922)). We concluded: ... [the] average voters reading the phrase “criminal law matters” at the time of [art. V, § 5’s] adoption would probably have interpreted it to encompass, at a minimum, all legal issues arising directly out of a criminal prosecution. Thus, we conclude without difficulty that the constitutional phrase “criminal law matters” does encompass, and this Court does have jurisdiction over, the issue presented in Lanford’s application. Lanford, 847 S.W.2d at 585. Further, in Smith v. Flack, 728 S.W.2d 784 (Tex.Cr.App.1987), we considered whether the payment of attorney’s fees was a criminal law matter. See, Tex.Code Crim.Proc.Ann. art. 26.05. The relators, four court-appointed criminal defense attorneys, sought a writ of mandamus to compel the Harris County Auditor and Commissioner’s Court to pay attorneys’ fees awarded by a trial judge. Id., at 787-788. To determine whether we had jurisdiction to issue the wilt, we observed: “[W]hen read as a whole, Article V, § 5 ... grants this Court the power to issue writs of mandamus when a criminal law is the subject of the litigation." Id., at 788. Concluding the litigation was grounded upon art. 26.05, we held the writ application directly involved a criminal law matter. Id., 788-789. See also, Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Cr.App.1987) (denial of motion for legislative continuance during criminal trial was a criminal law matter within Court’s mandamus jurisdiction); Dickens, 12.1 S.W.2d 542 (criminal discovery law was a criminal law matter within Court’s mandamus jurisdietion); and, Weiner v. Dial, 658 S.W.2d 786, 787 (Tex.Cr.App.1983) (appointment and compensation of attorneys to represent criminal clients pursuant to art. 26.05 is a criminal law matter). Moreover, a matter does not cease to be a criminal law matter simply because it may be necessary to address elements of civil law in resolving the matter. See, Commissioners’ Court v. Beall, 98 Tex. 104, 81 S.W. 526, 528 (1904). Compare, Ex parte Mode, 77 Tex.Crim. 432, 180 S.W. 708 (1915) (statute providing for local elections for pool hall regulation held constitutional). Although civil and criminal law matters may occasionally overlap, when a matter is essentially criminal, the presence of civil law issues will not remove the matter from our jurisdiction. Smith v. Flack, 728 S.W.2d at 788-789. In Smith, we explained that our jurisdiction to determine incidental issues of civil law was necessary to the exercise of our mandamus power: ... Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a criminal law matter as much as the issuance of the order itself, even if it requires this Court to examine civil laws in the process. Were it otherwise, this Court’s power to decide criminal law matters would be seriously eroded or eliminated altogether by the incidental presence of civil law matters. Id. Clearly, the entry of an order which stays the execution of a death row inmate is a criminal law matter. Art. V, § 5 specifically confers exclusive appellate jurisdiction of all cases in which the death penalty has been assessed in the Court of Criminal Appeals. A sentence of death may only be based upon a conviction for capital murder. Tex.Penal Code Ann. § 19.03. Further, the legislature has provided specific procedures relating to a capital trial and the execution of the death sentence. See e.g., Tex.Code Crim.Proc.Ann. arts. 34.01, 35.13, 35.15, 37.071, 42.04, 43.14, 43.15, 43.16, 43.17, 43.18, 43.19, 43.20, 43.21, 43.22, 43.24, and, 43.25. Because the respondent’s injunction “arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure,” and “arise[s] as a result of or incident to a criminal prosecution,” we hold this issue is a criminal law matter properly before this Court. See, Curry, supra; and, art. V, § 5. C. Adequate Remedy Graham contends relators have an adequate remedy through the normal appeals process. Relators contend this remedy is inadequate because the injunction was not a final judgment and, therefore, may not be immediately appealed. Further, relators contend the ultimate appeal of Graham’s case would be to the Supreme Court, Tex.R.App.P. 130, which would make resolution of the issue impossible because the Supreme Court would lack jurisdiction to decide the issue if we determine the injunction to be a criminal law matter, see, part 11(B), supra; and, State v. Morales, 869 S.W.2d 941 (1994). In Smith, we held: “In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.” Id., 728 S.W.2d at 792. As we stated in Steames, “[t]he remedy of appeal is simply inappropriate to the situation presented] here.” Id., 780 S.W.2d at 225. Rela-tors’ contentions address respondent’s jurisdiction to enter its writ of injunction. Resolution of this issue through the normal ap: peals process would necessarily require rela-tors to wait until final judgment is entered, and the appeals process would likely be through the civil courts. As previously noted, this Court has the ultimate jurisdiction over criminal law matters. See, Part 11(B), supra. Consequently, we hold that, under the facts of this ease, the normal appellate process would not provide relators an adequate remedy. D. Discretionary or Ministerial Relators contend respondent had no jurisdiction to enjoin Graham’s execution. Graham contends: [w]hile the trial court and [the Court of Criminal Appeals] certainly have the authority to stay Mr. Graham’s execution, nothing in the statutes cited by Relators grants “exclusive” authority to either court. Neither can they reasonably be read to limit the inherent authority of a Court of Appeals to enjoin parties before it from carrying out an execution when such action is necessary to the lawful exercise of jurisdiction over an appeal brought by state officials.... Response of Real Party in Interest to the State’s Motion For Leave To File Petition For Writ of Mandamus and/or Writ of Prohibition, pp. 13-14. At the time the indictment against Graham was filed in the 182nd District Court, “that court obtained sole jurisdiction over the case to exclusion of all other courts.” State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 480 (Tex.Cr.App.1985). Graham was convicted of capital murder and was sentenced to death. Appeal to this Court was automatic, Tex.Code Crim.Proc.Ann. art. 37.071(h), and we affirmed. Graham, 671 S.W.2d at 529. On December 10, 1984, our mandate issued. Pursuant to our mandate, the judge of the 182nd District Court ordered Graham’s execution. The effect of respondent’s injunction was to circumvent our decision and disobey our mandate. In State ex rel. Wilson v. Briggs, 171 Tex.Crim. 479, 351 S.W.2d 892 (1961), Judge Cullen Briggs, judge of the 117th District Court in Nueces County, stayed the execution of Howard Stickney, an inmate convicted in Harris County of capital murder and sentenced to death. Briggs held a hearing on Stickney’s application for writ of habeas corpus and stayed the execution. We set aside the stay and denied the application. Id., 351 S.W.2d at 893. The trial judge again set Stickney’s execution. However, the execution was stayed by yet another district judge. Id. The trial judge scheduled a third execution. However, eight minutes before the execution, Briggs stayed the execution and scheduled a hearing in Nueces County. Re-lators sought a writ of prohibition directing “Judge Briggs to take no further action or hold any further hearings on this application for habeas corpus.” Id., 351 S.W.2d at 893-894. We held: Judge Briggs has no greater authority or responsibility in death penalty cases tried in counties not in his judicial district than any of the other more than 150 district judges of this state. If it be the law in Texas that every district judge must be satisfied before a death sentence may be carried out, and any district judge may prevent the execution of such a sentence upon grounds which this Court has rejected, then this Court is not a court of last resort in criminal matters in this state. Briggs, 351 S.W.2d at 896. We find Briggs controlling. Any order by another state court which purports to stay a scheduled execution circumvents our decision and disobeys our mandate. Briggs, 351 S.W.2d at 894. Notwithstanding that respondent held the injunction was necessary to protect its jurisdiction over the appeal of the Graham’s civil case, Tex.R.App.P. 43, respondent may not interfere with our exclusive jurisdiction or disobey our mandate. We hold that respondent had no jurisdiction to enjoin the scheduled execution. In State ex rel. Millsap v. Lozano, we considered whether an order entered when the trial court had no jurisdiction over the cause was subject to mandamus. “Being without jurisdiction, the order entered after hearing is void and a writ of mandamus may issue to compel vacation of the order or orders....” Id., 692 S.W.2d at 482. See, State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App.1990); and, Steames, supra. Consequently, we hold that respondent’s injunction must be vacated because respondent had no jurisdiction to enter an order enjoining Graham’s execution. Therefore we sustain relators’ contentions one, two and three and hold that relators are entitled to a writ of mandamus to compel the vacation of respondent’s injunction. III. The State contends Graham’s only remedy is through post-conviction habeas corpus. See, Tex.Code Crim.Proe.Ann. art. 11.07. In response, Graham contends post-conviction habeas corpus does not he in this case: [hjabeas corpus is available only to review jurisdictional defects, or if the error is of constitutional dimension. Traditionally, however, the denial of fundamental or constitutional rights must have occurred during the underlying state criminal proceedings. Graham’s Brief at pg. 37. Graham further contends that claims of newly discovered evidence are not cognizable through habeas corpus, and, therefore, his only remedy is through the executive clemency process. In support of this contention Graham relies on Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983). A. Tex.Code Crim.Proc.Ann. art. 11.07 Tex.Code Crim.Proc.Ann. art. 11.01 defines writ of habeas corpus: The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by .a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint. Art. 11.07 § 2 provides the procedures for consideration of an application for writ of habeas corpus when the applicant is restrained by felony conviction. The writ is filed in the court where the conviction was obtained. Art. 11.07 § 2(b). If “controverted, previously unresolved facts ... material to the legality of the applicant’s confinement” exist, the trial judge must resolve the issues of fact and may order “affidavits, deposition, interrogatories, and hearings” to assist in his determination. After the trial judge makes “findings of fact,” the cause is transferred to this Court. Art. 11.07 § 2(d). We may deny relief “upon the findings and conclusions of the hearing judge,” or docket the case “as though originally presented.” Art. 11.07 § 3. B. Post-Conviction Habeas Corpus and Newly Discovered Evidence In Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983), Binder contended he was entitled to habeas relief based on newly discovered evidence. Id., 660 S.W.2d at 104-106. We denied relief concluding that “post-conviction habeas corpus has not been and is not now the appropriate remedy for an applicant whose claim for relief is based on newly discovered evidence.” Id., 660 S.W.2d at 106. However, we noted that Binder’s contentions were “based on nothing more than newly discovered evidence.” Binder made no claim of a violation of a “state or federal constitutional or statutory right.” Id. In Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982), Bravo contended he was entitled to habeas relief because the trial judge had improperly excused a veniremember under Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 66 L.Ed.2d 581 (1980). Bravo, 702 S.W.2d at 190-191. Finding the error to be of constitutional dimension, we granted relief. Id. In its motion for rehearing the State contended Bravo could not raise such a claim in his application for writ of habeas corpus because it was not raised on direct appeal. Id., 702 S.W.2d at 192. We overruled the State’s motion noting: “It is well established that habeas corpus will lie ... to review jurisdictional defect or denials of fundamental or constitutional rights.” Id., 702 S.W.2d at 193. See also, Ex parte Watson, 601 S.W.2d 350, 352 (Tex.CrApp.1980) (“[Hjabeas corpus will lie only to review jurisdictional defects or denials of fundamental or constitutional rights.”). There is no question that Graham’s liberty has been restrained by virtue of his death sentence. Thus to determine whether Graham may pursue a post-conviction application of habeas corpus we must view Graham’s claims in light of Binder, supra, and Bravo, supra. Consequently, if Graham alleges the denial of a fundamental or constitutional right habeas corpus is the appropriate vehicle for this Court to address Graham’s claims. Id, IV. Fundamental or Constitutional Right Graham contends that newly discovered evidence demonstrates his innocence of the crime for which he was condemned. The Supreme Court considered a similar issue in Herrera v. Collins, — U.S.—, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), under the Due Process Clause of the Fourteenth Amendment. Herrera was convicted of capital murder and sentenced to death in 1982. Ten years later, Herrera filed a federal habeas petition wherein he asserted newly discovered evidence that his brother committed the murder. Herrera contended he was entitled to federal habeas relief under the Due Process Clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment found in the Eighth Amendment. Herrera, — U.S. at— —, 113 S.Ct. at 856-859. Chief Justice Rehnquist, writing for the majority, stated: “We may assume for the sake of argument in deciding this case ... a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Herrera, — U.S. at —, 113 S.Ct. at 869. From our reading of Herrera, we understand six members of the Supreme Court to have recognized the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Graham, 853 S.W.2d at 567, n. 1 (Maloney, J., concurring and dissenting), (citing Herrera, — U.S. at —, 113 S.Ct. at 853; Id.,—U.S. at—, 113 S.Ct. at 869 (O’Connor and Kennedy, JJ., concurring; Id., — U.S. at —, 113 S.Ct. at 875 (White, J., concurring); and, Id., — U.S. at—, 113 S.Ct. at 876 (Blackmun, Stevens, and Souter, JJ., dissenting)). With this sound and fundamental principle of jurisprudence we cannot disagree; such an execution would surely constitute a violation of a constitutional or fundamental right. With the foregoing in mind, we read Graham’s contentions as claiming his execution would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, we hold that habeas corpus is an appropriate vehicle for Graham to assert his claim. To the extent that it conflicts with this holding, Binder is expressly overruled. V. A. Threshold Standard In Herrera, the Court recognized the need for an “extraordinarily high” threshold showing of innocence before habeas proceedings would be appropriate. Herrera, — U.S. at —, 113 S.Ct. at 869. The State agrees that before conducting proceedings on a claim of factual innocence based on newly discovered evidence a threshold should be required. The State contends that consideration of newly discovered evidence without the establishment of a threshold “would unfairly denigrate the constitutionally mandated right to trial by jury and would diminish, rather than enhance, the truth-seeking function of the criminal justice process.” We agree. Judge Maloney suggested such a threshold standard in Ex parte Graham, 853 S.W.2d 565, 567 (Tex.Cr.App.1993) (Maloney, J., concurring and dissenting, Baird and Overstreet; JJ., join). As to capital cases where newly discovered evidence is presented in support of a claim of actual innocence, this Court should establish a threshold standard.... In my opinion, the threshold question should be whether the newly discovered evidence, if true, would create a doubt as to the efficacy of the verdict to the extent that it undermines our confidence in the verdict and that it is probable that the verdict would be different.... We believe the adoption of this threshold standard will serve to eliminate the frivolous claims of factual innocence based on newly discovered evidence and provide for the efficient administration of such potentially meritorious claims. Consequently, we hold an applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine' confidence in the verdict and that it is probable that the verdict would be different. Once that threshold has been met the habeas court must afford the applicant a forum and opportunity to present his evidence. We now must determine the burden of proof the applicant must bear at that hearing in order to obtain habeas relief. B. The Burden of Proof Both Chief Justice Rhenquist speaking for the majority and Justice Blackmun, in dissent, stated “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Id., —U.S. at—and,—, 113 S.Ct. at 856 and, 882. Although Chief Justice Rhenquist did not define precisely the burden associated with “a truly persuasive demonstration of actual innocence,” we believe such a burden should be very high. The reasons for establishing such a high burden were articulated by Justice Blackmun in explaining why an otherwise constitutionally valid conviction should not be set aside lightly. ... [Cjonviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the,defendant’s guilt beyond a reasonable doubt, [citations omitted], but once the government has done so, the burden of proving innocence must shift to the convicted defendant ... When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt. Herrera, — U.S. at—, 113 S.Ct. at 882-883 (Blackmun, J., dissenting). In his concurrence, Justice White articulated the burden we feel is appropriate in these cases: In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this ease. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could find proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).... Herrera, — U.S. at—, 113 S.Ct. at 875 (White, J., concurring). Therefore, we hold that in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt. This threshold standard and burden of proof will satisfy the Due Process Clause of the Fourteenth Amendment and we adopt them in the habeas context. If the applicant meets the threshold standard announced above the habeas judge must hold a hearing to determine whether the newly discovered evidence, when considered in light of the entire record before the jury that convicted him, shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt. Therefore, we sustain the fourth contention and hold that, pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, Graham may appropriately couch his claims of factual innocence in the context of a violation of the Due Process Clause of the Fourteenth Amendment. VI. Finally, relators request that we assume original habeas corpus jurisdiction and resolve Graham’s claims. However, in light of our resolution of relator’s fourth contention, Graham is free to pursue his claims through the filing of an application under Tex.Code CiTm.Proc.Ann. art. 11.07. But, there is no application presently pending before this Court, nor has the trial judge been given the opportunity to prepare findings of fact consistent with art. 11.07 § 3. Consequently, relators’ fifth contention is dismissed. Conclusion We withhold issuance of the writ of mandamus and accord respondent the opportunity to conform its actions with part II of this opinion. Should such action not be taken, the wilt of mandamus will issue. Our stay of execution granted August 16, 1993, is vacated. . The temporary injunction specifically ordered: 1. A hearing before an impartial officer; 2. The right for [Graham’s] attorneys to confront evidence and witnesses against him and to cross-examine them during such hearing. 3. The right to present witnesses and evidence on [Graham's] behalf, and to have the Board issue subpoenas on [Graham’s] behalf for witnesses and evidence at such hearing; 4. The right to a written summary of the findings and decision of the hearing officer; 5. The right to be represented by counsel during such hearing; 6. The right to have the hearing transcribed by a court reporter; and, 7. The right to adequately prepare for such a hearing. Temporary Injunction (signed August 9, 1993); Graham v. Texas Board of Pardons & Paroles et al, No. 93-08624, pending in the 299th District Court of Travis County, Texas. . Respondent held: Clearly, to proceed with the execution as scheduled would affect the parties’ rights pending the disposition of the appeal from the district-court order of injunction and would destroy the subject matter of the lawsuit. Because to do so would interfere with this Court's jurisdiction over the appeal, we grant the request for relief. Opinion on writ of injunction, Slip op., pg. 3. . Specifically, the Board asked this Court: ... to vacate the original injunction by the Third Court of Appeals staying Graham's execution; to prohibit the Third Court of Appeals from taking any further action in this cause because these proceedings are criminal matters in a capital case in which the death penalty has been assessed and thus not within the jurisdiction of the civil courts of Texas; to direct the Third Court of Appeals to dismiss the appeal upon notice that the district court has dismissed this cause for want of jurisdiction pursuant to the holding of this Court; and, to assume original habeas jurisdiction to address the issue raised by Graham that a death row inmate is constitutionally entitled to a hearing before the Board of Pardons and Paroles on a request for clemency when he claims actual innocence based upon evidence not introduced at trial. Petition for Writs of Prohibition and Mandamus, pg. 6. .Specifically, relator Holmes requests this Court to: ... issue a writ of mandamus directing Respondent to vacate its order of August 13, 1993, in Cause No. 3-93-421-CV, Texas ... Further, Relator requests that this Court issue said order granting mandamus relief without undue delay due to the exigency of the issues sub judice, and further requests that a temporary stay be issued by this [Court] in Cause No. 3-93-421-CV pursuant to Tex.R.App.Proc. 121(d). Petition for Writ of Mandamus, pg. 2. . Art. V, § 5 provides in part: The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade.... The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, pro-cedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments. Further, Tex.Code Crim. Proc.Ann. art. 4.04, the legislative enactment of art. V, § 5, provides: Sec. 1. The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The court and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments. Sec. 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion. . We have also described the first prong as a clear right to the relief sought which is the functional equivalent of a ministerial act: ... [mandamus] is available only when the relator can establish two things: first, that under the relevant law and facts, he has a clear right to the relief sought, i.e., the act he seeks to compel is "ministerial".... State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). . All emphasis is supplied unless otherwise indicated. . We have inherent authority to grant a stay under art. V, § 5. Tex.R.App.P. 233 provides that the judge of the district court where the defendant was convicted has statutory authority to stay an execution but only when the judge determines that additional proceedings are necessary pursuant to Tex.Code Crim.Proc.Ann. art. 11.07. . Judge Meyers states "the order of another court that Graham’s execution be postponed ... does not interfere at all let alone disobey, this Court's mandate.” Holmes et al. v. Third Court of Appeals, 885 S.W.2d 389, 420 (Tex.Cr.App., delivered this date) (Meyers, J., dissenting). This contradicts the literal language of our mandate which provides: This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that the judgment be in all things affirmed ... and that this decision be certified below for observance. .In State ex rel. McNamara v. Clark, 79 Tex.Crim. 559, 187 S.W. 760 (1916), a pool hall owner filed a civil suit to enjoin the county attorney from enforcing a statute known as the "pool hall law.” See, Vernon's Sayles' Ann.Civ. Stat.1914, arts. 6319(a)-6319(n). Because the Supreme Court had previously held the statute invalid, Ex parte Mitchell, 109 Tex. 11, 177 S.W. 953 (1915), the trial judge in the civil case entered a writ of injunction against the county attorney precluding the county attorney from enforcing the statute. However, we had previously held the statute to be valid. Ex parte Francis, 72 Tex.Crim. 304, 165 S.W. 147 (1914). The county attorney applied to this Court for a writ of prohibition. We held: ... if the facts set out did not confer jurisdiction upon the district court to issue the writ of injunction, then its action in doing so is wholly void, and if the order is void, and under it the enforcement of the criminal laws of this state is being restrained, we think, under the law, this court has not only the authority, but it is its duty, to declare such order a nullity, in order that the county attorney may proceed with the proper performance of the duties enjoined on him by the other laws of this state the validity of which are not questioned. Clark, 187 S.W. af 762. . Our review is limited to respondent’s jurisdiction to enjoin Graham’s execution. Judge Meyers erroneously reads this opinion as ordering "the lower courts to relinquish jurisdiction” of the "issues raised by Graham’s lawsuit," Holmes ex rel. v. Third Court of Appeals, 885 S.W.2d 389, 418 (Tex.Cr.App., delivered this date) (Meyers, J., dissenting). This opinion does not preclude respondent from addressing the issues raised by the Board in appealing the order compelling a hearing on Graham's request for clemency. Nor does this opinion preclude Graham from continuing to seek civil review of the clemency process. . The Due Process Clause iu the Fourteenth Amendment provides: ... No person shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const, amend. XIV, § 1. . We note that in denying Graham's second application for writ of habeas corpus, we summarily overruled a similar claim based on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Graham, 853 S.W.2d at 565. We decide the issue today after extensive briefing by the parties and careful reconsideration of Graham's claim. Consequently, we believe our summary action was erroneous and Graham is not precluded from raising similar allegations in a subsequent writ application. See, Part VI., infra.
MILLER, J., dissents. Judge CAMPBELL, in his concurring opinion’s discussion of “The Clemency Process,” appeal’s to mirror my earlier comments in my Dissent to the Order Filing and Setting Relator’s Mandamus Actions, footnote 2. To that extent I agree with his “observations.” Nevertheless, Judge MEYERS has the proper view of the correct disposition of this matter, and thus I join his opinion.
OVERSTREET, J., dissents to Part II for the reasons stated in his dissenting opinion but joins Parts III, IV, V, and VI of this opinion.
CAMPBELL, Judge, concurring. I agree that the Court should grant mandamus relief, see State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873, 879 (Campbell, J., dissenting), and I join the opinion of the Court. I write separately, however, to elaborate upon the necessity to overrule, to the extent in conflict, our holding in Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App.1983). In Binder we held that “post-conviction habeas corpus ... is not ... the appropriate remedy for an applicant whose claim is based on newly discovered evidence.” Id., at 106. Two concerns, one constitutional and one prudential, now persuade me that we must modify our holding in Binder to the extent that the post-conviction habeas corpus process should be available to those few applicants who can meet the threshold standard set by a majority of the Court today. Due Process Gary Graham does not come before this Court as an innocent man, but rather as one who has been convicted in accordance with due process of law of capital murder. Graham v. State, 671 S.W.2d 529 (Tex.Crim.App.1984). The question before us, then, is not the legal guilt of Graham, but rather whether due process entitles a legally convicted individual to post-conviction judicial review of an “actual innocence” claim. The due process clause of the Fourteenth Amendment prohibits criminal process that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977). Certainly, the execution of an innocent person would offend the most basic of principles, deeply rooted in our civilization, that the innocent must not be punished. Six members of the Supreme Court, in various combinations and opinions, so stated in Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Because our present state criminal process presents a substantial risk that that basic principle will be violated, I believe that the process is constitutionally deficient. Given the interests at stake and the relatively slight cost to the government of litigating those few claims that will meet the minimum threshold set by the Court today, due process of law requires that a judicial forum be available for the assertion of such claims. The Clemency Process In Herrera v. Collins, — U.S., at— - —, 113 S.Ct., at 868-869 (1993) (some citations omitted), the Court noted the following: Executive clemency has provided the “fail safe” in our criminal justice system .... Recent authority confirms that over the past century clemency has been exercised frequently in capital eases in which demonstrations of “actual innocence” have been made.... In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const, art, IV, § 11; [Tex.Code Crim.Proe.] Art. 48.01. (Vernon 1979). The board’s consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for- a full pardon, a commutation of death sentence to life imprisonment or appropriate maximum penalty, or a reprieve of execution. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days. The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will en-tei’tain applications for a recommendation of full pardon because of innocence upon receipt of the following: “(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based.” Tex.Admin.Code § 143.2_ What the Supreme Court in Herrera did not realize; though, was that the policy of this Court, as expressed in Binder, rendered subsection (2) of § 143.2 unworkable and useless, for under Binder there is simply no way for a convicted individual to get into “a court having jurisdiction” to get his claim heard under subsection (2). And it is fairly obvious that subsection (1) is unlikely ever to be utilized successfully. Thus, under Binder there is a serious flaw in the Texas clemency process for claims of actual innocence. Under the Court’s holding today, in contrast, subsection (2) will be rendered meaningful. A convicted individual can file an application for writ of habeas corpus under Article 11.07 and then, if he wishes, use the findings of that court to file an application for a recommendation of full pardon under § 143.2(2). With these comments, I join the opinion and judgment of the Court.
WHITE, Judge, concurring in part and dissenting in part. I. I agree with the majority that we should sustain relators’ first, second, and third contentions, and find relators are entitled to a writ of mandamus to compel the vacation of respondent’s injunction. I believe respondent does not have the jurisdiction to enjoin the execution of Gary Graham, which would be an unlawful interference with the mandate of this Court. To decide otherwise, would be the dangerous precedent of permitting lower courts to interfere with the mandates of this Court whenever they perceive it to be necessary in a civil lawsuit. I therefore join Parts I and II of the majority opinion. This does not mean that I believe the District Court lacked jurisdiction to hear Gary Graham’s claim: that the Board of Pardons and Paroles violated his right to due course of law by denying his request for executive clemency without permitting him a hearing to present his request. I believe this question into the constitutional viability of the procedures followed by the Board is a matter of civil law. Our State’s executive clemency provisions do not constitute another step in the appellate review of a criminal conviction. These provisions do not provide a venue to contest the validity or integrity of a criminal conviction. They involve the issuance of orders pursuant to civil statutes, not criminal statutes. Compare with Curry v. Wilson, 853 S.W.2d 40, at 43 (Tex.Cr.App.1993). I believe that is a matter to be resolved in courts with jurisdiction over matters of civil law. However, I think they are an important safeguard and remedy against the wrongful punishment of an individual who is actually innocent. II. Because I also believe that the State’s executive clemency procedures are the only state remedy available to an inmate who advances a claim of actual innocence after his conviction is final, I disagree with the majority’s holding that Graham is entitled to pursue his claim of actual innocence through this state’s habeas procedures. As the Supreme Court explained in Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), clemency is the traditional state remedy for these claims. In Herrera, the Court found the proper avenue for a claim of newly discovered evidence of innocence was executive clemency procedures, as it “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, — U.S. at—, 113 S.Ct. at 866. The Court determined that the procedures set up by the Texas Legislature for executive clemency in this State were a sufficient remedy for the claim advanced by Herrera. “History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” Herrera v. Collins, — U.S. at—, 113 S.Ct. at 869. In its opinion, the Court points out that “a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional.” Herrera v. Collins, — U.S. at —, 113 S.Ct. at 869. If there “were no state avenue open to process such a claim,” federal habeas relief would be warranted. Id. Yet, even though they held that Texas’ executive clemency procedures were an adequate remedy to process a claim of actual innocence, the Court reviewed the merits of Herrera’s claim by assuming, arguendo, that Herrera had advanced such a constitutional claim. Herrera, — U.S. at ——, 113 S.Ct. at 870. After assuming for the sake of the argument that Herrera had advanced a bona fide claim under the Fourteenth Amendment, the Court reviewed the evidence which Herrera brought forward and concluded that his showing of innocence fell “far short of that which would trigger the sort of constitutional claim which we have assumed, arguendo, to exist.” Herrera, — U.S., at— - —, 113 S.Ct., at 869-870. The Court relied on the protections of the Due Process Clause in reaching this decision. Today, the majority acts to create another, and, in my view, unnecessary and dangerous, remedy for claims like Herrera and Graham’s within our state. It creates this remedy in our state habeas system. In order to do this, the majority assumes that Graham’s claim is the same as Herrera’s claim: that his execution would violate the Due Process Clause of the Fourteenth Amendment. The majority then holds that state habeas corpus “is an appropriate vehicle for Graham to assert his claim.” I do not believe that we should add a layer of protection for Fourteenth Amendment claims between this state’s executive clemency procedures and the federal habeas system. To reach their conclusion, the majority views Graham’s claim to be a demonstration of “his innocence of the crime for which he was condemned.” Instead, I would hold Graham’s claim of “innocence” to be nothing more than window dressing over a claim that is actually a claim of “newly discovered evidence.” Graham has assembled what he believes to be new evidence in support of his alibi and in support of his claim that another individual committed the capital murder for which he was convicted. Actual innocence is merely the conclusion which he hopes a tribunal will reach upon review of his “newly discovered evidence.” Graham readily admits that a claim of newly discovered evidence, as this Court ruled in Ex Parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983), is not a fit subject for the exercise of state habeas corpus powers. Binder, at 106. I believe these claims do not involve challenges to the legality of the proceedings in which the claimants were conviet-ed, or challenges to the constitutionality of those proceedings which produced those convictions. Binder, at 106. I would hold they are not properly advanced in state habeas proceedings. • I draw more support for my argument that Graham’s claim is not suitable for state habe-as from this Court’s previous discussions of the nature of a claim of “newly discovered evidence.” In Drew v. State, 743 S.W.2d 207 (Tex.Cr.App.1987), this Court decided that a claim of newly discovered evidence will prevail only if, “The materiality of the evidence is such as would probably bring about a different result in another trial.” Drew v. State, at 226; and cases cited therein. Essentially, a reviewing court is asking whether or not the newly discovered evidence would contribute enough to a jury’s deliberations that they would reach a different verdict. I do not mean to imply that deciding the materiality of newly discovered evidence is the same thing as harmless error analysis. I do believe the two processes are substantively similar, since the objective is to decide whether a result of a trial would have been different if the newly discovered evidence would have been admitted there, or if the error’s contribution to the verdict at trial had not occurred. We have held that state constitutional error that is subject to harmless error analysis is not cognizable on a writ of habeas corpus, because it would, at best, render a conviction voidable. Ex Parte Dutchover, 779 S.W.2d 76, at 77 (Tex.Cr.App.1989). Even if Graham’s claim is a federal constitutional claim, and if his newly discovered evidence is sufficiently material, it would still not render his conviction void. At best, that conviction would be voidable, dependent on the materiality of the newly discovered evidence. I believe that, because a claim such as that of Graham does not challenge the legality of the proceeding in which he was convicted or the constitutionality of the proceedings which resulted in his conviction, and because his challenge would not only render that conviction voidable, Graham’s claim does not represent an issue that is cognizable on state habeas. After the majority assumed that Graham’s Fourteenth Amendment rights were violated in the instant cause (an assumption I cannot agree with), the majority holds that Ex Parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982) (on rehearing) controls. In my view, Bravo is substantively different from the instant cause. Bravo dealt with a case wherein veniremembers were improperly excluded, thereby violating the Sixth and Fourteenth Amendments of the United States Constitution. Bravo, at 192-193. This represented a claim of constitutional dimension addressing the proceedings (specifically, the selection of the jury) in which the claimant was convicted, and was properly raised in a writ of habeas corpus. Bravo, Id. As such, I believe Bravo is distinguishable from the instant cause. I do not agree with the majority that our state habeas system is the proper vehicle to advance a Fourteenth Amendment claim of actual innocence. I do not agree that Graham’s execution without first being granted a habeas corpus forum in this State’s courts would be violative of the Fourteenth Amendment. The Federal habeas system, as decided by the Supreme Court, is sufficient to handle such claims if they are not first resolved in the State’s executive clemency process. As Judge Clinton pointed out in his concurring opinion in Ex Parte Dutchover, 779 S.W.2d, at 78, this Court is certainly “not beholden to the federal courts” to review federal constitutional claims on collateral attack. In light of the Supreme Court’s reliance on this state’s executive clemency procedures as the proper avenue for an inmate’s claims of actual innocence, I believe it is neither necessary, nor very wise, to open up the state habeas system for such claims. I would hold that Binder controls the instant cause. Lastly, I believe the decision of the majority is potentially dangerous. It is possible that advocates before this Court will use the majority’s decision today as a crowbar to open the door to a state forum in our trial courts for every inmate to relitigate his conviction years after he or she has already enjoyed every protection our criminal justice system extends to those individuals who were, at one time, presumptively innocent. A decision to deny Graham a state habeas avenue for his claim of actual innocence would not cut him off from pursuing that claim. In a case such as his, where the State Board of Pardons and Paroles summarily denied his request for executive clemency, the state avenues which the Supreme Court spoke of in Herrera would have been exhausted. Under Herrera, and pursuant to the Fourteenth Amendment, Graham could have his forum for his claim that he is actually innocent under federal habeas relief prior to his execution, without the benefit of a state district court injunction of that mandate. If the Legislature finds the Board of Pardons and Paroles needs to have a different procedure for dealing with claims such as Graham’s, they can create one. None of this would require this Court to act by giving to Graham an opportunity to pursue his claim in state habeas. Because I believe there should be no state habeas relief for a Fourteenth Amendment claim of actual innocence, I see no need to recommend a threshold standard for presentation of such a claim, or a burden of proof for resolving that claim. I respectfully dissent to Parts III, IV, and V of the majority opinion. For the reasons stated above, I join parts I and II of the majority opinion. OVERSTREET, Judge, concurring in part and dissenting in part. In this mandamus action we must decide whether the Court of Appeals for the Third District, [hereinafter respondent] in Cause No. 3-93-421-CV, styled Texas Board of Pardons and Paroles, et. al. v. Gary Graham, exceeded its statutory authority by granting injunctive relief, that in effect stayed the execution of Gary Graham [hereinafter Graham]. At issue is the relationship between respondent’s statutory right to preserve the subject matter on appeal pending review of a district court’s decision and this Court’s constitutional and statutory duty as the court of last resort in criminal prosecutions. I. On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County [hereinafter civil court] seeking an order compelling the Board of Pardons and Paroles [hereinafter Board] to hold a “due course of law” hearing on his request for clemency. Specifically, the suit claimed that the procedure employed by the Board in its clemency determinations constitute a denial of due course of law in violation of art. I, §§ 13 and 19, and art. IV, § 11 of the Texas Constitution. On August 9, 1993, the civil court entered a temporary injunction and in its order found that Graham was entitled to a “due course of law hearing on his post conviction claim of innocence.” On August 10, 1993, the Board filed notice of appeal to respondent. On August 12, 1993, this Court entered an order denying leave to file an original mandamus action challenging the civil court’s order brought by the Hams County District Attorney [hereinafter district attorney] because the Board’s notice of appeal suspended the civil court’s order and none of the parties were “presently enjoined from taking any action” including the execution of Graham. On August 12, 1993, Graham filed an “Emergency Motion for Stay of Execution” with respondent. On August 13, 1993, respondent entered a writ of injunction prohibiting the named parties from proceeding with the execution of Graham pending resolution of the appeal. Respondent determined it had authority to issue such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal. Tex.R.App. Pro. 43(c). Respondent found that the execution of Graham pending disposition of the appeal would affect the parties’ rights pending the disposition of the appeal from the civil court’s order of injunction and would destroy the subject matter of the lawsuit and to do so would interfere with respondent’s jurisdiction over the appeal. Relators, the Board and the district attorney, sought mandamus relief in this court to set aside the order by respondent. We denied leave to file the applications, State ex rel. Holmes v. Third Court of Appeal, 860 S.W.2d 873 (Tex.Cr.App.1993), but on our own motion stayed Graham’s execution. On November 9, 1993, this Court reconsidered the motions requesting mandamus relief, granted leave to file, consolidated the motions and set them for submission. (Clinton, J., Miller, J. and Overstreet J., dissenting). II. Appellate review is restricted to those actions and proceedings that are within the appellate court’s jurisdiction. An appellate court has jurisdiction to determine whether it has jurisdiction on its own motion or upon motion of a party to the appeal. 4 Tex.Jur.3d Appellate Review § 25 (1980). Once jurisdiction is invoked, that jurisdiction embraces every thing in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App.1980). It is well settled that once a court of appeals acquires jurisdiction of a cause, whether by appeal or by the exercise of its original jurisdiction, it may issue writs of injunction as may be necessary to protect or enforce that jurisdiction. Baird v. Sam Houston Elec. Co-op, 627 S.W.2d 732 (Tex.App. — Houston [1st Dist.] 1982, no writ) (citing City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663 (1924). This power, however, is limited generally to preserving the status quo, and to the protection of the subject matter in order that the case will not become moot. Id. 267 S.W. at 733. If appellate jurisdiction is threatened, a court of appeals’ right to preserve and protect it cannot depend on the adequacy of legal remedies which might be available to the litigants but which are not available to the court. Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App. — San Antonio 1980, no writ). This Court’s appellate jurisdiction is limited to criminal law matters. Tex. Const, art. V, § 5; Article 4.04, Y.A.C.C.P. We have exclusive appellate jurisdiction to review a ca