Justin Murphy v. State ( 2015 )

ACCEPTED
03-15-00105-CR
6115073
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/17/2015 1:03:20 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00105-CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
7/17/2015 1:03:20 PM
IN THE JEFFREY D. KYLE
Clerk
COURT OF APPEALS
THIRD DISTRICT
JUSTIN MURPHY,
Appellant,
v.j
THE STATE OF TEXAS,
Appellee,
On Appeal from the County Court at Law Number 3 of Travis County, Texas
C-l-CR-07-200104,
APPELLANT'S RESPONSE T O STATE'S RESPONSE T O MOTION FOR
R E H E A R I N G AND R E Q U E S T FOR F U R T H E R HEARINGS IN T H E
T R I A L COURT
TO T H E HONORABLE JUSTICES OF T H E THIRD COURT OF
APPEALS:
This case is completely upside down by the lack of organizational
communication or lack of candor on the part of the Travis County Attorney's
Office.
STATEMENT OF F A C T S
1. On May 11**^ and 19, 2014 the Honorable Jon Wisser heard testimony
relating to the instant matter. On August 28' 2015 he signed his findings.
No copy or notice was given to Petitioner or his Counsel. A second writ of
habeas corpus was filed to restore the right of appeal.
2. The State of Texas represented by Barbara Rowan took no position
and stood silent as to whether the right of appeal should be restored as is
reflected in the order. On January 26, 2015 the Honorable Jon Wisser
granted relief The State of Texas then filed an objection in the form of a
motion to dismiss appeal on April 3, 2015 after their time to complain on
appeal about the relief granted in the Second Writ of Habeas Corpus had
run. Put another way, the State's argument that the relief sought was not
authorized by statute should have been argued in court and then on appeal by
the State of Texas through their filing of a notice of appeal, rather than a
motion to dismiss for lack of jurisdiction. The State of Texas is untimely in
seeking to litigate the validity of the trial court's ruling. As has been noted,
the Court of Appeals lacks jurisdiction to entertain any matter absent a
timely filed notice of appeal.
3. A writ of habeas corpus is the proper procedural vehicle to re-instate
the right of appeal after the 30 day time period has run. Ex parte Clifton
Axel, Jr.. 151 S.W.2d 369 (Tex.Crim.App 1988).
4. I f there is merit to the contention that the order is void because the
Court's staff failed to remit the order to the Travis County Clerk to be
stamped, then this matter should be remanded to the trial court for further
proceedings since no legal order is properly before the Court of Appeals. I f
the State of Texas is correct, this Court is not yet in a position to rule on
whether the Trial Court can or can not restore appeal rights through a writ of
habeas corpus.
PRAYER
Wherefore, Justin Murphy, for the reasons stated herein, requests that the Court
find that the Motion to Dismiss was improvidently ruled upon. Or, in the
alternative, remands this back to the trial court to properly reduce to writing and
file the order conforming to the ruling of the court.
Respectfully Submitted,
Adam^ing Blackwell Reposa
SEN 24040163
1106 San Antonio
Austin, Texas 78701
512-477-7376
512-478-1114 fax
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their
attorneys of record, in compliance with the Texas Rules of Appellate Procedure,
this 17^*^ day of July, 2015, by fax and email delivery.
Adam King Blackwell Reposa