State v. Frances Anita Robinson ( 2015 )

ACCEPTED
03-15-00153-CR
5296282
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/15/2015 9:16:20 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00153-CR
THE STATE OF TEXAS § IN THE THIRD FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
v. § DISTRICT 5/15/2015
COURT9:16:20
OF AM
JEFFREY D. KYLE
FRANCES ANITA ROBINSON § APPEALS OF TEXAS Clerk
STATE’S SECOND MOTION TO EXTEND TIME TO FILE BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellant in the above styled and numbered
cause, and moves for an extension of time of 30 days from reinstatement of the
instant case in the Court of Appeals (after a potential remand) or from the trial
court’s filing of any amended findings to file Appellee’s brief, and for good cause
would show the following:
I.
Appellee was indicted by a grand jury on June 5, 2013 for the charge of
Intoxication Manslaughter in CR2013-267. After Appellee’s motion to suppress
evidence was granted by the trial court on February 18, 2015, the State timely
appealed pursuant to article 44.01 of the Code of Criminal Procedure, and a stay
was granted by the Court of Appeals on March 20, 2015. The State timely filed its
request for findings of fact and conclusions of law with the trial court on March 10,
2015. See Tex. R. Civ. P. 296. Out of an abundance of caution, the State timely
filed its notice of past due findings of fact and conclusions of law on April 9, 2015,
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along with the State’s proposed findings for the trial court. See Tex. R. Civ. P. 297.
The State’s brief is currently due on May 14, 2015.
II.
Assistant District Attorney Daniel Palmitier is handling the appeal for the
State in this case. Yesterday, May 14, 2015, the State filed a verified motion to
abate and remand the cause to the trial court, because the trial court’s findings –
entered after it was deprived of jurisdiction – are void, and because the State is
entitled to have such findings for the appeal. Further, the State had no notice or
actual knowledge of the entry of said findings until May 6, 2015 – more than ten
days after they were filed. See Tex. R. Civ. P. 297, 298. The State will request
additional findings in the event of a remand. Mr. Palmitier has already performed
much of the necessary research, but he has not yet been able to complete the
State’s brief. The State’s Verified Motion to Abate and Remand is currently
pending in this Court; in the event of a remand, the State respectfully requests an
extension of 30 days from reinstatement in the Court of Appeals – or 30 days from
the filing of any amended findings – to file its brief. This is the second extension
sought by Appellee.
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III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel
respectfully prays for an extension of 30 days after reinstatement in the Court of
Appeals or the entry of amended findings, so that Appellant’s brief will fully,
adequately and accurately present its case to the Honorable Court of Appeals. This
extension is not requested for purposes of delay but so that justice may be done.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley SBN: 24088254
preslj@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008
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CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for Appellant, the State of
Texas, hereby certify that a true and correct copy of the above and foregoing
State’s Second Motion to Extend Time to File Brief was sent to
Defendant/Appellee FRANCES ANITA ROBINSON’s attorney of record in this
matter:
Mr. Charles Sullivan
csullivan@lawcsullivan.com
308 Campbell Dr.
Canyon Lake, TX 78133
Fax: 210-579-6448
Attorney for Appellee on Appeal
By electronic service to the above-listed email address through efile.txcourts.gov
on this the 15th day of May, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
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