Delarosa, Jose Ramiro ( 2015 )

COURT OF CRIMINAL APPEALS PD-1406-14
COURT OF CRIMINAL APPEALS
March 25, 2015 AUSTIN, TEXAS
Transmitted 3/26/2015 2:57:51 PM
abelacosta, clerk Accepted 3/26/2015 2:59:56 PM
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABELACLERK
JOSE RAMIRO DELAROSA, § CCA NO. PD-1406-14
APPELLANT §
§
V. § COA NO. 05-14-01020-CR
§
THE STATE OF TEXAS, §
APPELLEE 8 TC NO. F14-52888-T
STATE'S MOTION FOR LEAVE TO FILE
REPLY BRIEF AS PER TEX. R. APP. P. 70.4
STATE'S PLEADING IN REPLY TO APPELLANT'S MERIT BRIEF ON
STATE'S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE COURT OF APPEALS, FIFTH
DISTRICT OF TEXAS IN CAUSE NUMBER 05-14-01020-CR, THAT HAD
BEEN APPEALED FROM CAUSE NUMBER F14-52888-T IN THE 283rd
JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, THE
HONORABLE RICK MAGNIS, JUDGE PRESIDING.
SUSAN HAWK
Criminal District Attorney
Dallas County, Texas
MICHAEL R. CASILLAS
Assistant Criminal District Attorney
Appellate Division
*& \&
State Bar No. 03967500
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207-4399
(214) 653-3600/FAX (214) 653-3643
Mcasillas@dallascounty.org
michael.casillas@dallascounty.org;
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
JOSE RAMIRO DELAROSA, § CCA NO. PD-1406-14
APPELLANT §
§
V. § COA NO. 05-14-01020-CR
§
THE STATE OF TEXAS, §
APPELLEE 8 TC NO. F14-52888-T
STATE'S MOTION FOR LEAVE TO FILE
REPLY BRIEF AS PER TEX. R. APP. P. 70.4
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State hereby respectfully moves this Court for leave to permit the State
to file the State's Reply Brief On The Merits that is being tendered to the Court
contemporaneously with the instant motion. While the appealing party before an
intermediate appellate court has a right file a reply brief under the Texas Rules of
Appellate Procedure, the filing of a reply brief before this Court may only be
accomplished with this Court's leave according to the terms of Tex. R. App. P.
70.4. For the following reasons, the State requests leave of this Court to file the
State's Reply Brief On The Merits that accompanies the instant motion. In support
of this motion, the State would show this Court the following:
The State's petition for discretionary review was previously granted on
January 28, 2015. That petition for discretionary review initially presented an
issue of a fairly-limited nature, i.e., whether the Fifth Court erred by failing to
follow Tavlor v. State, 247 S.W.3d 223 (Tex. Crim. App. 2008) and make use of
the abatement process to determine whether the trial court had in fact granted a
motion for new trial, which would determine whether the Fifth Court did or did not
have jurisdiction over Delarosa's case.
However, the nature of the issues presented by this case became more
complex when Delarosa filed a motion to dismiss the State's previously-granted
petition for discretionary review based on a "judgment" that had been issued by the
trial court while the State's timely-filed petition for discretionary review was
pending before this Court. The State's response to Delarosa's dismissal motion
informed this Court that Delarosa's dismissal motion had squarely raised the issue
of whether this Court had sole and exclusive jurisdiction at the time the
"judgment" of December 17, 2014 was entered. Accordingly, this Court directed
the parties to brief not only the substantive issue that arose directly from the State's
petition for discretionary review, but also the issue of whether the invocation of
this Court's jurisdiction had deprived the trial court of any jurisdiction to attempt
to dispose of the case.
The State submitted its opening merit brief and Delarosa also submitted a
separate jurisdictional brief and a reply brief on the merits. Based on issues raised
in Delarosa's Reply Brief, the State has drafted the State's Reply Brief On The
Merits to address certain issues raised by Delarosa's Reply Brief. In short, the
State's Reply Brief On The Merits discusses how the arguments in Delarosa's
Reply Brief are based on multiple unproven assumptions, assumptions that the use
of the abatement process would have the clear potential to clarify. Moreover,
Delarosa's Reply Brief raises certain issues regarding what the trial court would
have been required to do had the trial court actually granted Delarosa's motion for
new trial based on the sole claim it contained, which was a claim of insufficiency
of the evidence.
II.
The relevant language of the Texas Rules of Appellate Procedure permit the
appealing party before the intermediate appellate court to file a reply brief that
addresses "any matter in the appellee's brief as a matter of right. Tex. R. App. P.
38.3. While Tex. R. App. P. 70.4 conditions the filing of a reply brief before this
Court by the appealing party on this Court's granting leave to file such a reply
brief, the State submits that the State's Reply Brief On The Merits addresses
matters in Delarosa's Reply Brief that this Court would want to consider in
deciding how to resolve the issues presented by the State's petition for
discretionary review and the State's response to Delarosa's dismissal motion.
Accordingly, the State respectfully seeks leave from this Court to file the State's
Reply Brief On The Merits so that the relevant considerations identified therein
will undoubtedly be placed before this Court.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this Court
will grant the State leave to file the State's Reply Brief On The Merits that
accompanies the instant motion and will order the State's Reply Brief On The
Merits filed as of date of this Court's choosing.
Respectfully submitted,
SUSAN HAWK,
Criminal District Attorney
Dallas County, Texas
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