John Calvin Marshall v. State ( 2015 )

ACCEPTED
12-14-00368-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/1/2015 10:51:56 AM
CATHY LUSK
CLERK
NO. 12-14-00368-CR
JOHN CALVIN MARSHALL § IN THE COURT OF APPEALS
FILED IN
§ 12th COURT OF APPEALS
VS. § TWELFTH APPELLATE TYLER, TEXAS
DISTRICT
§ 7/1/2015 10:51:56 AM
STATE OF TEXAS § TYLER, TEXAS CATHY S. LUSK
Clerk
APPELLANT’S RESPONSE TO STATE’S MOTION FOR LEAVE
TO FILE LATE BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes JOHN CALVIN MARSHALL, Appellant in the above styled and
numbered cause, and files this motion responding to the State’s Motion for Leave to File
Late Brief, and for good cause shows the following:
1. This case is on appeal from the 294th Judicial District Court of Van Zandt
County, Texas.
2. The case below was styled the State of Texas vs. John Calvin Marshall and
numbered CR11-00070.
3. Appellant was convicted of Burglary of a Habitation with Intent to Commit
Sexaul Assault.
4. Appellant was assessed a sentence of 25 years TCDJ-ID on October 3,
2014.
5. Notice of appeal was given on December 30, 2014.
6. The clerk's record was filed on January 30, 2015; the reporter's record
was filed on March 2, 2014 and a supplement was filed on March 24, 2015.
7. Appellant’s Brief was due on April 1, 2015.
8. Appellant requested an extension of time of 30 days due to the
supplement filed by the Court Reporter on March 24, 2015.
9. No extension to file the brief had been filed previously in this cause.
10. The Court granted Appellant’s request and extended the time to file
Appellant’s Brief until May 1, 2015.
11. Appellant filed the brief on May 1, 2015 using ProDoc efile and served
Chris Martin, Van Zandt County Criminal District Attorney, via email through ProDoc
efile at chrismartin@vanzandtcounty.org. (See Exhibit A and Exhibit B and C)
12. Appellant’s eservice provider indicates that the document was sent. (See
Exhibit A) The SMTP log shows that the message was successfully sent on 5/1/15 at
04:58:07.81. (See Exhibit B and C, please note that SMTP log is printed from a scroll
window and the log starts at 04:58:05.89 and ends at 04:58:07.83. Exhibits B and C both
show 04:58:07.16 to 04:58:07.67.)
13. Appellant’s attorney, Dean White, received a notice via email with
attachment from the Twelfth Court of Appeal indicating that Appellant’s brief had been
electronically filed. (See Exhibit D and E). Exhibit E indicates an email was sent to Chris
Martin, Van Zandt County Criminal District Attorney, giving the State notice that
Appellant’s brief had been filed in this cause.
14. On June 25, 2015, Richard Schmidt, Assistant Criminal District Attorney
for Van Zandt County, informed Appellant’s attorney Nolan White during docket in the
294th Judicial District Court that the State did not receive a copy of Appellant’s brief. Mr
Schmidt sent Nolan White an email on June 25, 2015 requesting a copy. Nolan White
was not in his office when Mr. Schmidt sent the email. Nolan White opened the email on
June 26, 2015 and provided the State with an eservice copy, a regular emailed copy
and also hand delivered a copy.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
denies the State’s Motion for Leave to Extend Time to File Brief on its face or grant a
hearing on the State's motion so that Appellant can respond through oral argument.
Respectfully submitted,
Dean White,
Attorney at Law
690 West Dallas
P.O. Box 155
Canton, Texas 75103
Tel: (903) 567-4155
Fax: (903) 567-4964
By: /s/ Dean White
Dean White
State Bar No. 21299500
Attorney for JOHN CALVIN MARSHALL
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
document was served on the District Attorney's Office, Van Zandt County, 400 S.
Buffalo, Canton, Texas 75103, by electronic service through the Electronic Filing
Manager.
/s/ Dean White
Dean White